This dissertation has been microfilmed exactly as received 66-15,138 STEBBINS, Phillip Eugene, 1934- A HISTORY OF THE ROLE OF THE UNITED STATES SUPREME COURT IN FOREIGN POLICY.
The Ohio State University, Ph.D., 1966 History, modern
University Microfilms, Inc., Ann Arbor, Michigan A HISTORY OF THE ROLE OF THE
UNITED STATES SUPREME
COURT IN FOREIGN POLICY
DISSERTATION
Presented in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy in the Graduate School of The Ohio State University
By
Phillip E. Stebbins, B.S., LL.B.
*******
The Ohio State University 1966
Approved by
RL-g.lhtKr, Adviser Department of History VITA
November 16, 1934 Born, Kewanee, Illinois 1954 Bachelor of Science, University of Wisconsin 1959 Bachelor of Laws, The Ohio State University 1959 - 1962 Attorney, Toledo, Ohio 1962 - 1963 Mershon Fellow, The Ohio State University 1963 - 1966 Graduate Assistant, Department of History, The Ohio State University
FIELDS OF STUDY
Major Field: History United States Constitutional Foster Rhea Dulles American Foreign Policy Fos.er Rhea Dulles English Constitutional and Medieval Franklin J. Pegues England 1485-1714 Clayton Roberts Latin America John J . TePaske
ii TABLE OF CONTENTS Page INTRODUCTION...... 1
I. NEUTRALITY AND RECOGNITION...... 9
II. TREATIES AND TERRITORIAL QUESTIONS...... 35
III. PROBLEMS OF THE CIVIL W A R ...... 53
IV. SEPARATION OF POWERS...... 67
V. REVIVAL OF THE RECOGNITION QUESTION IN THE TWENTIETH CENTURY...... 86
VI. POWERS, INHERENT AND PLENARY...... 108
VII. WAR, PEACE AND WORLD RESPONSIBILITY...... 118
VIII. THE BRICKER AMENDMENT AND ITS CHALLENGE TO THE EXECUTIVE...... 153
IX. CONCLUSIONS...... 172
TABLE OF SUPREME COURT CAS ES...... 184
BIBLIOGRAPHY...... 190
iii INTRODUCTION
The American judiciary ia by nature a passive instrument. It acts only when parties independent of the court invite it to do so.
Yet, in observing its role, Alexis de Tocqueville perceived that 11 few
laws can escape the searching analysis of judicial power for any
length of time, for there are few that are not prejudicial to some private interest or otherThe courts, therefore, play an important role as arbiters resolving conflicts which have assumed the form of a
case or controversy.
One such arbitral function of the Supreme Court of the United
States is the case by case decision of questions arising out of the
domestic or international policies established by the policy-making
departments of government. Here it is a conventional court of law
administering ordinary civil or criminal justice. Article III,
Section 2 of the Constitution and the Judiciary Act of 1789 confer
this jurisdiction on the Court. In such cases, usually on an appellate
level, it passes on the rights and obligations of the parties to the
suit. It settles the question of applicability of specific laws to
the matter at hand. There are however occasions when the Court
^Alexis de Tocqueville, Democracy in America (New York, 1945), vol. 1, 101-102.
1 2 refuses to play this accepted role: when it shys away from a judicial decision in a case before it and claims the question is non-justiciable.
The problem created by this deference, although not unknown in domestic questions, is most familiar in the field of foreign policy.
Here judicial self-limitation has created a kind of limbo into which the Court, for many reasons, has refused to trespass. And, although it will hear this kind of case, it will not disturb the policies estab lished by the political departments. This judicial deference means no redress can be expected from the Court. The parties to the action are left, in effect, where they were before the suit was ever instituted.
Their only recourse is to the political branches of government. The
Court calls such matters "political questions", a kind of short hand way of saying that the judicial branch will not second guess the policy 2 makers in certain areas.
2 Black's Law Dictionary (4th ed., St. Paul, 1951), at 1319, defines political questions as: Questions of which the courts of justice will refuse to take cog nizance, or to decide on account of their purely political charac ter, or because their determina tion would involve an encroachment upon the executive or legislative powers. . . . Edward S. Corwinin The Constitution of the United States of America (Washington, 1954), at 547 states that: . . .a political question may be defined as a question relating to the possession of political power, of sovereignty, of government, the determination of which is vested in Congress and the President whose decisions are conclusive upon the courts. 3
Critics decry this judicial abstention in questions involving 3 international affairs. They argue that it is defaulting in the role which constitutionally it was intended to fill. Other observers, how ever, point to the dangers which await the Court should it venture into 4 the "political thicket." They note that it cannot lead unless someone will follow. The justices are nine men whose opinions depend upon concurrence of the executive if they are to be carried into effect.
Despite all the respect shown the Court, it would be in^ossible for it long to flaunt the executive, legislative and popular will in any matter about which feelings run high. This is particularly true in
foreign affairs for in this area the judiciary has no special talents which make it competent to strike out on some foreign policy adventure which may contradict or confuse the decisions made by the executive or
^For example, see Edward S. Corwin, "Judicial Review in Action," Univ. of Pennsylvania Law Review, LXX1V (1938), 639; John p. Frank, "Political Questions," in Edmond Cahn, ed., Supreme Court and Supreme Law (Bloomington, 1954) ; Woodford Howard, "Constitutional Limitation and American Foreign Policy," in Gottfried Dietze, ed., Essays on the American Constitution (Englewood Cliffs, 1964) ; Louis L. Jaffe, Judicial Aspects of Foreign Relations in Particular of Recognition of Foreign Powers (Cambridge, 1933); C. Herman Pritchett, "Equal Pro tection and the Urban Majority," American Political Science Review, LVIII (1964), 869. 4 See for example, David Maurice Levitan, "Recent Developments in the Control of Foreign Relations under the Constitution of the United States" (unpublished Ph.D. dissertation, University of Chicago, 1940); Charles Warren, "Political practice and the Constitution," Univ. of Pennsylvania Law Review, LXXXIX (1941), 1003; Melville Fuller Weston, "Political Questions," Harvard Law Review, XXXVIII (1925), 296. 4 legislature. This dispute over the proper role of the judiciary in political questions has no clear cut solution. The Court, reflecting an awareness of this, has expanded or contracted the category of poli tical questions in an accordion like manner depending upon the exigencies of the case before It. It is true, however, that in foreign affairs the Court has usually stretched the accordion to its widest.
Included in a list of political questions, for example, are the matter of sovereignty of either the United States or a foreign state, the related question of boundaries and territorial authority, the determination of American neutrality, the existence of peace or war, the length of a military occupation, the recognition of the inde pendence or belligerency of a foreign state or government, the acknowledgment of diplomatic immunity, and the status of Indians and aliens--enemy or otherwise. Finally, the validity or breach of a 5 treaty is generally a political question. Although here the courts
The following represents a limited list of cases defining various categories of questions as ‘•political**. For example in the case of sovereignty and boundaries, see De La Croix v. Chamberlain, 12 Wheat. 599 (1827); Foster v. Neilson, 2 Pet. 253 (1829); U.S. v. Arredondo, 6 Pet. 691 (1832); Garcia v. Lee, 12 Pet. 511 (1838) ; Williams v. Suffolk Ins. Co., 13 Pet. 415 (1839); Qetjen v. Central Leather Co.. 246 U.S. 297 (19 1 8). For neutrality or war or occupation see, The Nuestra Senora de la Caridad, 4 Wheat. 497 (1819) ; Prize Cases, 2 Black 635 (1863); Neely v. Henkel, 180 U.S. 109 (1901) ; Hirabayashi v. U.S.. 320 U.S. 81 (1943) ; In re Yamashita, 327 U.S. 1 (1946) ; Ludecke v. Watkins, 335 U.S. 160 (1948); Harisiades v. Shaughnessy, 342 U.S. 580 (1952). For recognition see, Rose v. Himely, 4 Cranch 241 (1808) ; Gelston v. Hoyt, 3 Wheat. 246 (1818) ; U.S. v. Palmer, 3 Wheat. 610 (1818); The Divina Pastora, 4 Wheat. 52 (1819); Williams v. Suffolk Insurance Co., 13 Pet. 415 (1839) ; Rennett v. Chambers, 14 How. 38 (1852); Ricaud v. American Metal Co., 246 U.S. 304 (1918) ; Guaranty Trust Co. v . U.S ., 304 U.S. 126 (1938) ; U.S. v. Pink, 315 U.S. 203 (1942) . 5 retain a particular authority to interpret the terms of a treaty so long as the policy makers regard it as still in effect.
This doctrine of political questions cannot be inferred from the language of the Constitution. In fact Article III, Section 2 seems to confer jurisdiction on the Court to review all cases under the laws and treaties of the United States. Rather it is wholly a product of the judiciary— truly an example of judicial self-restraint which contrasts sharply with contemporary judicial intervention in the reapportionment cases and recent activism in the civil rights area.
While judicial deference may have only a negative effect on the general conduct of foreign policy, the Court plays another, more posi tive, role in this field. It acts as an uaq>lre between the branches of government and, as such, it defines the boundaries of each branch's power. The Court has encouraged the President in its decisions. It has indicated that the usual checks upon the exercise of his power are
For diplomatic immunity see, Ex parte Hitz. Ill U.S. 766 (1883); In re Baiz, 135 U.S. 403 (1890). For Indians and aliens see, Cherokee Nation v. Georgia, 5 Pet. 1 (1831) ; Chinese Exclusion cases, 130 U.S. 581 (1889) ; Fong Yue Ting v. U.S.. 149 U.S. 698 (1893) ; Ludecke v. Watkins, 335 U.S. 160 (1948) ; Knauff v. Shaughnessy. 338 U.S. 537 (1950) ; Johnson v. Eisentrager, 339 U.S. 763 (1950) ; Harisiades v. Shaughnessy, 342 U.S. 580 (1952) . For treaties see, U.S. v. Reynes, 9 How. 127 (1849) ; Doe v. Braden, 16 How. 636 (1853) ; Whitney v. Robertson. 124 U.S. 190 (1888) ; Botiller v. Dominquez, 130 U.S. 581 (1889) ; Chinese Exclusion cases, 130 U.S. 581 (1889); Ter linden v. Ames. 184 U.S. 270 (1902). 6 not present in making foreign policy. Elis authority in this field is plenary as set forth in Jefferson's statement that "the transaction of 6 business with foreign nations is executive altogether."
The Court's concession— some would say creation--of this important presidential authority is an even more controversial contribution than the political question doctrine. The Constitution is mute regarding general authority in the conduct of foreign affairs. What it does confer is general executive authority on the President. To this authority it makes some exceptions. One is the Senatorial partnership in appointments and treaty-making. A second exception gives the national legislature power to declare war. Nevertheless, those powers not expressly taken from the President remain in his hands. So argued
Hamilton and so argue those who today support the notion of plenary 7 presidential power. But strict constructionists, opponents of
Hamiltonian logic, see no broad grant of diplomatic authority to the
President.
Confusing the debate over plenary power is the issue of its theoretical basis--assuming it does exist. The controversy here involves a constitutional versus an extraconstitutional basis for the
^Paul Leicester Ford, ed., The Writings of Thomas Jefferson. (New York and London, 1895), vol. V, 160.
^ilenry Cabot Lodge, ed., The Works of Alexander Hamilton. (New York and London, 1903), vol. IV, p. 432ff. See also Jacob B. Cooke, ed., The Federalist, (Middletown, Conn., 1961), 505. 7 exercise of the power. Some find support for plenary presidential authority in the language of the Constitution, as did Hamilton, while another school believes that the prerogative in international affairs belongs to the executive without any constitutional grant. Such power in foreign affairs, they argue, exists because the state exists; and g the executive holds it because he is the head of state.
So the argument over plenary power continues to rage--although it is now mainly confined to political speeches and academic essays.
And while the debate goes on, judicial opinions continue to buttress the arguments of those who uphold the Hamiltonian position. For, while the Court has not fixed the outer boundaries of the foreign relations authority, its decisions have indicated that the range of executive discretion is almost immeasurable.
Finally, it must be realized that political questions and plenary presidential power are interrelated. A positive recognition of the executive's plenary power requires judicial deference to that power once it is exercised. Thus, the sanctioning of executive authority makes any policy decision based upon that authority a polit ical question.
g Elmer plischke, Conduct of American Diplomacy (Princeton, 1961) ; George Sutherland, "The Internal and External Powers of the National Government," Sen. Doc. N. 417, 61st Cong., 2** sees. (1910) ; George Sutherland, Constitutional Power and World Affairs (New York, 1919); Fong Yue Ting v. U.S.. 149 U.S. 698 (1892); United States v. Cur ties-Wright Export Corp., 299 U.S. 304 (1936), 318. 8
Historically, the Court's effort to find the judiciary's place in foreign affairs has been a reflection of contemporary concerns. Since the Court can only speak in suits which private parties institute, its statements have been unevenly developed. There is a frustrating absence of judicial expression in situations which call for some explanation.
Those who crave a symmetrically finished pattern outlining the Court's role in foreign affairs will not find it in its decisions. However, where opinions do exist, the Court has clearly established a pattern with regard to foreign policy*
The question, therefore, is to determine the historical importance of the Supreme Court in the power equation in foreign affairs. This dissertation will address itself to this question. In so doing it will examine the significance of the development of the political questions doctrine and the consequent withdrawal of the judiciary from a host of
foreign policy cases. It will explore the explanations— or rational- izations--offered by the Court in such cases. And, in addition, it will consider the importance of the judicial allowance to the executive of sweeping— plenary--powers. CHAPTER I
NEUTRALITY AND RECOGNITION
For the first forty years after ratification of the Constitution, foreign affairs were equal to domestic concerns in importance for the
American people. Not until isolationism was shattered by the events of the Second World War, and the Cold War which followed it, would foreign policy questions again play so important and continuous a part in political and judicial matters. During this early period, the political departments formulated and executed policy on a wide variety of diplomatic concerns; and the Supreme Court of Jay, Ellsworth and
Marshall, in its opinions, outlined the role of the judiciary in foreign affairs. It was a period in which answers to all sorts of diplomatic questions were supplied. It was a period for the laying of foundations in the evolution of national policy.
The new nation, "an Infant in international affairs," faced complex problems. Its expansion, its pride and prestige, its national security were challenged by European Btates with important stakes in the New World. Relations with France degenerated from alliance to open emnity. A second armed conflict between the United States and
Britain waited in the wings. Spanish control in Florida and Louisiana appeared to frustrate what would soon be called America's manifest destiny. Threats of war, armed conflicts, diplomatic maneuvers,
9 10 treaties— made and renounced--played an important part In the affairs of government and in the lives of the people.
The waves set up by the French Revolution struck the American shores causing revolutions in Haiti and in Spain's Latin American colonies. "It was a time," writes Louis L. Jaffe, "when the political
face of the world was being made over; when the bonds of allegiance were being broken; when the pride of parent states was high and touchy; when recognition of rebellious offspring was a gingerly and dangerous performance
The first Washington administration faced these complications.
The new Constitution under which it functioned was vague and often
silent in foreign policy matters. There was little precedent to guide
the administration concerning the part the executive arm and the other governmental branches should play.
The key to Washington's foreign policy was his seizure of the initiative. The urgings of Hamilton and the impracticality of the
Senate as an advisory council in foreign affairs encouraged Washing
ton's reliance on presidential prerogative. Such assumption of power by the executive drew criticism, but the precedents of Washington's actions would serve future executives well. Alsiost one hundred years
later, Woodrow Wilson, aware of Washington's example, commented,
When foreign affairs play a prominent part in the politics and policy of a nation, its Executive must of necessity be
^Louis L. Jaffe, Judicial Aspects of Foreign Relations, 139. 11
Its guide; must utter every in itial judgment, take every first step of action, supply the in formation upon which it is to act, suggest and in large mea sure control its conduct*
As Washington's administration struggled with the decisions facing it, the Supreme Court sat by passively. The President and his cabinet established the earliest precedents for the conduct of national diplo macy. Later, when the Court reviewed these executive decisions in regularly instituted suits, it approved--or more correctly deferred to them. In these opinions was born the belief that certain questions because of their purely political character were beyond judicial cog nizance .
One of Washington's earliest diplomatic challenges was the threat posed by the Anglo-French conflict born of the FrenchRevolution.
Would the United States honor its French alliance? Practical con siderations --most notably, the British navy--dictated that such a course would be folly. The President's official family agreed on this.
Neutrality--if not impartiality--was the course most beneficial to
American interests. But once the cabinet conceded this, the matter became more difficult. What procedure would be used to establish
America's neutrality?
woodrow Wilson, Congressional Government (15th ed., Boston, 1885), xi-xii. 12
Washington's solution was direct and uncomplicated. On April 22,
1793, he Issued the first Proclamation of Neutrality. He did this without consultation with the Senate or House.
Justification for Washington's action assumed the validity of a certain line of argument which had its roots in the colonial period when the English crown controlled foreign policy. With independence, ran this argument, the diplomatic authority passed directly to the national executive. He need not consult with the states' representa tives in Congress, but could issue such a proclamation on his authority 3 alone.
Immediately after this first proclamation Washington, concerned over American treaty obligations to France, attempted to get an advisory opinion from the Supreme Court regarding the implications of
American neutrality. Hamilton authored most of the questions for the
Court. And reflecting his beliefs, they raised no question of presi- 4 dential authority to issue the proclamation. Instead, they confined themselves to the matter of American rights and duties under a declared policy of neutrality. Chief Justice Jay refused to give any opinion. Without judicial advice, and again without consulting the legislature, the President thereupon issued a second proclamation of neutrality on March 24, 1794. Not until June 5, 1794 did the Congress pass a Neutrality Act which prohibited Americans accepting a commission
3 David Maurice Levitan, "Recent Developments," 112. ^See Charles Marion Thomas, American Neutrality in 1793 (New York, 1931), 267-271. 13 from or enlisting in the service of a foreign prince to go beyond the jurisdiction of the United States as a soldier, seaman or other military agent. It further outlawed the fitting out, arming or augmenting the force of ships to be employed by a foreign prince against another state with whom the United States was at peace. Finally, it conferred 5 authority upon the President to enforce these provisions.
Jefferson questioned the assumption of power by the Chief Execu tive before Congress had acted. Feeling that neutrality was, in effect, a non-declaration of war, and noting that the authority to declare war was constitutionally lodged in the national legislature, he believed
Washington's action prevented "the competent body from deliberating on 6 the question." It was a violation of separation of powers.
Hamilton defended Washington's proclamation. Pronouncing upon
"external political relations", he argued, is part of the general executive power from which the Constitution excepts only treaty-making 7 and the declaration of war. "While, therefore," noted Hamilton, "the
Legislature alone can declare war, can actually transfer the nation from a state of peace to a state of hostility, it belongs to the
'executive power' to do whatever else the law of nations, co-operating with the treaties of the country, enjoin in the intercourse of the
5U.S., Statutes at Large, I, 381-384 (1794).
^H.A. Washington, ed., The Writings of Thomas Jefferson (Wash ington, 1853), III, 513; see also Ford, ed., Writings of Jefferson, VI, 315-316.
^Lodge, ed., Writings of Hamilton, IV, 432 et seq. 14
United States with foreign Powers. . . . It is the province and duty g of the executive to preserve to the nation the blessings of peace.1*
The executive, he continued, is 11 the organ of intercourse between the nation and foreign nations, . . . the interpreter of national treaties, . . . the power which is charged with the execution of the laws, of which treaties form a part, . . . ifan Jefferson's strict constructionist views reached print through the pen of James Madison. The latter1s argument seems as applicable to the foreign affairs problems in the 1960's as it was at the time he wrote it. Madison found nothing in the general executive authority which invested the President with, what he considered, quasi-legis- lative powers. "Although the executive may be a convenient organ of preliminary conmunications with foreign governments" and "the proper 8Ibid.. 443. 9Ibid.. 437. 10Ibid., 444. 15 ageat for carrying into execution the final determinations of the competent authority," he denied that the Constitution conferred any legislative powers on the executive allowing him to conclude laws which 11 declare war or make peace. The Constitution, in his view, withheld both the war and treaty-making powers from exclusive executive control and Washington1s proclamation usurped a legislative prerogative and prejudged the issue. "£Thq7 legislature, instead of being free as it ought," he stated, "£waq7 thrown under the dilemma, of either sacri ficing its judgment to that of the executive; or, by opposing the executive judgment, of producing a relation between the two depart ments, extremely delicate among ourselves, and of the worst influence on the national character and interests abroad." 12 No case came before the Supreme Court in 1793 which required it to answer the question raised in the Hamilton-Madison exchange. The closest the Court came to speaking out on this issue was in a charge given to a grand jury in 1793 by Chief Justice Jay. He remarked that Washington's proclamation had been "with great propriety declared" and represented "authentic and official information . . . given to the 13 citizens of the United States." ^Gaillard Hunt, ed., The Writings of James Madison (New York and London, 1906), VI, 146-147. 12Ibid., 183. 13 Francis Wharton, State Trials of the United States during the Administration of Washington and Adams (Phila., 1849), 53. 16 World conditions gave added weight to this judicial attitude. The Court, by allowing the presidential interpretation of the separation of powers to go unchallenged, allowed the executive to determine the foreign policy course of the new nation in a time of crisis. This unified leadership provided the country with direction and stability— elements notably lacking when the legislature of the Confederation directed foreign affairs. By the time aggrieved parties brought cases to the Court raising questions regarding American neutrality, Congress had passed the Act of 1794, thus indirectly sanctioning Washington's action. Questions regarding presidential proclamations issued on executive authority alone then became moot. Though not called upon to render an opinion regarding presi dential authority to issue a neutrality proclamation without legis lative consent, the Court, nevertheless, in other cases set an example for the world of neutral rights and obligations. The matter of Talbot v. Jansen, decided in 1795, was a case in point. It concerned a Dutch vessel taken at sea by privateers, one of which sailed under a commission from the French governor of Guadeloupe. The captors brought the Dutch vessel to Charleston as a prize. Jansen, as agent for the Dutch owners, instituted a libel for recovery of the vessel. He claimed that Talbot and Ballard, the privateers, were United States citizens and their vessels were owned, 143 Dallas 133 (1795) . 17 built, equipped and armed in the United States. The Court, accepting the accuracy of the Jansen allegations, found the conduct of Talbot and Ballard illegal and ordered restitution of the vessel to its Dutch owners. Justice Paterson affirmed the judgment of the lower court. "It is an act of justice," he commented, "resulting from the law of nations, to restore to the friendly power the possession of his vessel, 15 which a citizen of the United States illegally obtained." In the course of his opinion Justice Paterson summarized the Court's view of neutral obligations: The United States are neutral in the present war; they take no part in it; they remain common friends to all the belligerent powers, not favoring the aims of one to the detriment of the oth ers. An exact impartiality must mark their conduct towards the parties at war; for if they favor one to the injury of the other, it would be a departure from pacific principles, and indica tive of an hostile disposition. It would be a fraudulent neu trality.16 It is uncertain whether the United States could have observed its neutrality without such strong judicial support. The Court's opinions made it clear that it would hold Americans to the highest standard of conduct. In his excellent history of the Court, Charles Warren takes note of the judiciary's role: Since the country at large was not in sympathy with the 15Ibid., 157. 16Ibid.. 155. 18 enforcement of its international duty, it became peculiarly in cumbent upon the Courts, and especially the Supreme Court, to enforce the laws with strictness for both the honor of the United States and the preservation of peace . . . At the same time that the Court lectured the nation on the duties of neutrals, it faced the further problem of French consular courts in the United States, France had set up a series of such forums in American coastal cities for the purpose of condemning prizes captured by French vessels. She claimed this right under terms of the treaty of Amity and Commerce with the United States. In fact, the language of that treaty gave no such authority to France but the French Mini ster, Edmond Charles Genet, assumed it did and acted accordingly. The Administration realized the compromising position in which these French prize courts put the nation. Suffering them to exist was conduct which did not become a neutral nation. Moreover, as an unauthorized invasion of territorial sovereignty, they insulted the national dignity of the United States. A case, Glass v. Sloop Betsy, raising the question of the legality of these courts, came before the 18 Supreme Court for review in 1794. The Federal District Court had invoked the political question doctrine. The judge, "while anxious ^Charles Warren, The Supreme Court in United States History (Boston, 1937), I, 573. I83 Dallas 6 (1794) 19 for the peace and dignity*' of the country, found he lacked authority to review the legality of French prize courts. "X leave," he wrote, "in better hands /than those of a court j the discussion on the subject of national insult and the remedy for an invasion of territorial rights." 19 The plaintiff in the original action appealed the decision to the United States Supreme Court. It could have easily followed the example set by the trial court below: finding the question non-justiciable. However, it decided that the admiralty jurisdiction of France, in the absence of a specific 20 treaty commitment, "is not of right." The Court was prepared to demand of Americans that they meet their obligations as neutrals even at the expense of alienating a French ally. Neutrality continued to be a problem in spite of the Neutrality Act of 1794 and the Court's obvious intention to hold Americans to a high standard of conduct. There was a change in victims, but not of attitude. Spain replaced France and Britain as the principal prey of American privateers and raiders but with the restoration of diplo matic relations between Spain and the United States in 1815, the gov ernment in Washington acted to extend the coverage of neutrality 19 Quoted, Warren, The Supreme Court, I, 107. "Quoted,20 Warren, The Supreme Court, I, 117. On September 1, 1793 the Cabinet agreed that the proper course was to take whatever measures were necessary to put an end to French admiralty jurisdiction in the United States. See, Thomas, American Neutrality, 218. This decision made the opinion in the matter of the Betsy less "political" than it might otherwise have been. Certainly the Court could not mistake the policy of the political department. 20 legislation to Spanish territories. In that year President Madison-- under the authority of the Neutrality Act of 1794--issued another neutrality proclamation. It prohibited "conspiring together to begin and set on foot" expeditions on American soil aimed at Spanish 21 possessions. Congress in 1817 passed additional laws prohibiting the fitting out or arming of vessels to be used in the service of "any colony, district or people" against any power with whom the United 22 States was at peace. Alledged violations of these laws continued to keep the Court busy. For the next ten years it handed down a series of opinions 2 reaffirming the duties incumbent upon the United States as a neutral. For example, Mr. Justice Livingston, speaking for the Court in 1819 in the matter of The Estrella, called for impartiality as well as 24 neutrality. 21 U.S., American State Papers, Class I, Foreign Relations (Wash ington, 1834), IV, 1. 22U.S., Statutes at Large. Ill, 370 (1817) . ^^The Brig Alberta v. Bias Moran, 9 Cranch 359 (1815); The Divina Pastora, 4 Wheat. 52 (1819) ; The Estrella, 4 Wheat. 298 (1819) ; Neustra Signora de la Caridad, 4 Wheat. 497 (1819) ; Josefa Segunda, 5 Wheat. 338 (1820); La Amistad de Rues, 5 Wheat. 385 (1820); Bello Corrunes, 6 Wheat. 152 (1821) ; Nueva Anna. 6 Wheat. 193 (1821) ; La Conception, 6 Wheat. 235 (1821) ; The Santisslma Trinidad, 7 Wheat. 283 (1822) ; Gran Para, 7 Wheat. 471 (1822) ; Santa Maria, 7 Wheat. 490 (1822); Arrogante Barcelones, 7 Wheat. 496 (1822); Monte Allegre. 7 Wheat. 520 (1822); La Nereyda. 8 Wheat. 108 (1823) ; and The Fanny, 9 Wheat. 658 (1824) . 244 Wheat. 298 (1819) . 21 So long as a nation does not In terfere in the war, but professes an exact impartiality toward both parties, it is its duty, as well as right, and its safety, good faith, and honor demand of it, to be vigilant in preventing its neu trality from being abused, for the purpose of hostility against either of them.^ The United States must not only prohibit "warlike preparations and equipments in its own waters," but--if it is to preserve its neutral- ity--strip violators of their gains, "restoring to the original owner such property as has been wrested from him by vessels which 26 have been thus illegally fitted out." During the period of the Marshall Court one case was decided which serves as an excellent summation of the Court's view of American neutrality. This case was that of The Santissima Trinidad, decided 27 in 1822. The original Spanish owners filed an action in Norfolk, Virginia for recovery of cargo previously taken from them by a privateer on the high seas. The privateer sailed under commission from the United Provinces of the Rio de la Plata, then at war with Spain. The owners claimed— and proved to the Court's satisfaction— that the capturing vessel which had initially set out from the United States on a 25Ibid., 309. 26 Ibid. 277 Wheat. 283 (1822) . 22 commercial venture to Buenos Ayres and later turned to privateering, was owned in the United States, captained by a native citizen of the United States, and that its crew of citizens was enlisted in the United States. Justice Story opened his opinion with a discussion of the prob lems raised by the rebellions in Spain's colonies. He noted the United States had recognized the existence of a civil war in Buenos Ayres, but had “avowed a determination to remain neutral between these 28 parties.1' “We cannot," he wrote, "interfere to the prejudice of either belligerent without making ourselves a party to the contest, 29 and departing from the posture of neutrality." He then considered two questions regarding American neutrality. First, he discussed the consequences of sending an armed vessel to a belligerent state on a commercial venture which included the sale of contraband to that belligerent. This he concluded was no violation of neutrality. True, if the Spaniards had captured her she could have properly been condemned as a prize. But this did not mean the United States had to prohibit sale of contraband to belligerents at foreign ports. Such a transaction was a commercial venture undertaken at the risk of the owner of the vessel and as such it was not a breach of the 30 United States' neutral status. 28 Ibid., 337. 29Ibid. 30 Ibid.. 340. 23 His second point concerned the consequences of an illegal aug mentation of a vessel's force inside the territory of the United States. Such an augmentation violated United States neutrality. As such it 31 "infects captures subsequently made." The Court therefore required a restoration of the illegally taken prize. To do otherwise would be 32 a violation of the United States neutral duty. For all their Importance in defining neutrality, the Court never used these cases as a vehicle for the discussion of either presidential authority or the political questions doctrine. They did not raise the matter of the President's powers in foreign affairs. And the Court's decision not to treat neutrality as a political question was due to the context in which neutrality questions arose. The judiciary had a long tradition of involvement in prize cases. The Court could deal with such suits on familiar ground. It was, therefore, important that the cases which it employed as a vehicle for laying down the rules of neutrality were prize questions. The whole body of rules and precedents of the "law of nations," to which Marshall so often referred, was at hand for invocation when necessary. The judiciary, in these cases, had an historical basis for intervention and it had the legal tools necessary for its decisions. 31Ibid ., 348. 32Ibld., 349. 24 The neutrality cases were an exception. Those dealing with recognition provide a better picture of the Marshall Court's view of 33 its role in foreign affairs. Here the Court warmly embraced the political questions doctrine. And here it laid the foundations for sweeping— if not plenary— executive power. In recognition, as in neutrality, the French Revolution raised the earliest questions for which the political departments had to find answers. The question of recognition of the regime of the French Republic grew out of the arrival of the French Minister to the United States. To Jefferson, France had a clear unqualified right to recognition: We surely cannot deny to any na tion that right whereon our own Government is founded— that everyone may govern itself ac cording to whatever form it pleases, and change these forms at its own will; and that it may transact its business with for eign nations through whatever organ it thinks proper, whether king, convention, assembly, com mittee, president, or anything else it may choose. The will of the nation is the only thing essential to be regarded.^ 33 See, U.S. v. Palmer, 3 Wheat., 610 (1818) ; Foster v. Neilson, 2 Pet. 253 (1829); and Williams v. Suffolk Ins. Co., 13 Pet. 415 (1839) . 34 Ford, ed., Writings of Jefferson, VI, 199. 25 Hamilton agreed that Genet should be received but felt that President Washington should qualify his reception with a declaration reserving the question of United States commitments under the treaty with 35 France. However, neither Jefferson nor Hamilton challenged executive authority to extend recognition through the reception of Minister Genet; nor did Washington ask congressional advice on this subject. He extended recognition on his own responsibility. No protest came from the Senate or House, and no case came before the courts question ing the executive presumption of authority. The precedent stood un challenged. But the legislature that had remained quiet while Washington recognized the French Republic spoke out when two decades later the Spanish colonies in Latin America were struggling for their independ ence. At this time its members tried to claim a part for Congress in the recognition process. In 1811 a joint congressional committee, viewing "with friendly Interest the establishment of independent sovereignties by the Spanish provinces in America," dipped its oar into the waters of recognition: . . . As neighbors and Inhabitants of the same hemisphere the United States feels great solicitude for their welfare and . . . when those provinces shall have attained the condition of nations by the just Moore, Digest, 1 , 120 . 26 exercise of their rights, the Senate and the House of Represent atives will unite with the Executive in establishing with them, as sov ereign and independent states, such amicable relations and commercial intercourse as may require their Legislative authority.^ As sympathy for the Latin American revolutionaries grew, Henry Clay became the most persistent and articulate spokesman for recog nition. To this end he asserted an authority in the Congress for a voice in this process. In March 1818 he moved for appropriations "for an outfit and one year's salary of a Minister to the United Prov- 37 inces of the River Plata." In the consideration of this motion* the debate indicated that other members of the House also felt the legis lature had in this field "a power concurrent with that of the Execu- 38 tive branch." John Quincy Adams, eager to settle the matter of Florida and therefore solicitous of Spanish feelings, took offense at Clay's proposal. "£]Jt had the appearance of dictating to the Execu tive with regard to the execution of its own duties . . he noted 39 in a letter to Albert Gallatin, then minister to France. In a cabinet meeting, on January 1, 1819, Adams counseled President Monroe that . . . instead of admitting the Senate or House of Representatives 36 U.S., Annals of Congress. 12th Cong., 1811, I, 428. 37 U.S., Annals of Congress. 15th Cong., 1st Sess., 1818, II, 1655. 38 Ibid.. 1654ff. ■^Quoted, Moore, Digest I, 82. 27 to any share in the act of recognition, I would ex pressly avoid that form of do ing it which would require the concurrence of those bodies Undeterred by the Secretary of State's disapproval and apparently in different to any consideration that his statements might compromise a treaty with Spain over Florida, Clay continued to press for recognition. In 1820 he again introduced an appropriations measure for ministerial expenses. The House of Representatives and the people of the United States, he argued, feel a deep interest "for the success of the Spanish provinces of South America which are struggling to establish their liberty and independence; . . . it will give its Constitutional support to the President of the United States, whenever he may deem it expedient to recognize the sovereignty and Independence of any of said 41 provinces." The debate again questioned the relative authority of the executive and legislature in matters of recognition. Then in 1822 after Spain had transferred Florida to the United States, President Monroe, relieved of international pressures to retain Spanish goodwill, invited Congress to make appropriations necessary for the establishment of diplomatic missions in the independent Latin American states. In his message to Congress he urged congressional co-operation with the 42 executive "as their respective rights and duties may require." 40 Charles Frances Adams, ed., Memoirs of John Quincy Adams (Phila delphia, 1874-77), IV, 205-206. 41 U.S., Annals of Congress. 16th Cong. 2d Sess., 1820, I, 1081. 42 Quoted, Moore, Digest, I, 245. 28 The dispute between Congress and the President concerning recog nition of the Latin American states demonstrated that the legislature, alone, could not accord recognition. The final determination that "the provinces which have declared their independence and are in the 43 possession of it ought to be recognized," came from the President. However, the role of the legislature, as Edward Corwin has observed, must not be overlooked. "Throughout this episode," he has written, 44 "it was Congress who forced the pace, not the President." In those cases which came before the Supreme Court questioning the consequences of recognition or non-recognition, it accepted the doctrine of political questions and deferred to the policy of the executive and legislative branches of government without expressly defining where the power to recognize was situated. All the Court needed to know was whether the political departments had extended recognition of independence or belligerency to the state involved. From this knowledge the conclusions followed automatically. If the political departments extended recognition, the Court would not deny the existence of the recognized state. This was the easy way— and the Court's deference in such cases seems natural. But if the political departments had not extended recognition the matter became less clear. 43 Quoted, Moore, Digest. I, 245. ^Edward S . Corwin, The President Office and Powers (rev. ed., New York, 1948), 229. See also, plischke, Conduct of American Diplomacy, 104. 29 The first time this issue came before the Court was in 1808. At this time Marshall deferred to the political arm of government. If the policy makers had not recognized a state, the Court was not free to take cognizance of it in any legal action. This decision set a pattern for the future. The case in point, that of Rose v. Himely, concerned the American schooner Sarah which sailed from the United States in 1804 to trade with the Hbrigands and rebels'* who then held the French sector of the 45 island of Santo Domingo. A French privateer captured the Sarah in 1804, carried her cargo to Cuba and sold it without formal proceedings of condemnation as a prize. When the cargo arrived in Charleston, Rose, the owner of the Sarah, filed a libel against the purchasers of the cargo. The cargo was subsequently condemned by a French court. The validity of the French decree was tied up with the question of whether the French were still the legitimate authority in Santo Domingo. Marshall reviewed the facts of the civil war on that island, but con cluded that the Court must not make an independent judgment. It is for the government to decide, whether they will consider St. Do mingo as an independent nation, and until such a decision shall be made, or France shall relinquish her claim, courts of justice must consider the ancient state of things as remaining unaltered, and the sovereign power of France as still subsisting.4^ 454 Cranch 241 (1808) . 46Ibid., 272. 30 In 1818 the Court reviewed two cases which again raised the question of the judicial attitude to non-recognition by the political departments. In Gelston v. Hoyt Justice Story, speaking for the Court, rejected the idea that it "was bound to take judicial notice of the relations of the country with foreign states /specifically Santo Do- mlngq7 and to decide affirmatively, that Petion and Christophe were foreign princes within the purview of the statute. No doctrine is better established than that it belongs exclusively to governments /'i.e., political department^/ bo recognize new states in the revo- 47 lutions which may occur in the world . . . Story then echoed Marshall: "... until such recognition . . . courts of justice are 48 bound to consider that the ancient state of things remain unaltered." 49 The second case in 1818 was United States v. Palmer. John Palmer and two other United States citizens were charged with piracy against a Spanish vessel. A foreign sovereign, not recognized by the United States, had commissioned the vessel which committed the alleged piracy. By United States law acts performed as part of a war were not piracy. It was therefore important to decide whether an actual war did exist. The judgment of the Court on this matter depended upon the expressions of the United States political depart ments. If they recognized the existence of a civil war, this 47 3 Wheat. 246 (1818), 324 48Ibid., 324. *93 Wheat. 610 (1818) . 31 recognition was sufficient to cloak all hostile acts which would other wise be piracy, with a mantle of legality. Said Chief Justice Marshall: To decide otherwise, would be to determine that the war prosecuted by one of the parties was unlaw ful, and would be to arraign the nation to which the court belongs, against that party. This would transcend the limits prescribed to the judicial department.^ Since the judiciary alone could not recognize the existence of a civil war, to whom did this power belong? Marshall's answer: . . . when a civil war rages in a foreign nation, one part of which separates itself from the old es tablished government, and erects itself into a distinct government, the courts of the Union must view such newly constituted government as it is viewed by the legislative and executive departments of the^ government of the United States. This last statement was the closest the Court came in this period to pronouncing on the extent of legislative and executive authority in recognition cases. It accepted presidential assumption of that authority and deferred to that authority where exercised. And while its opinions never questioned the executive's power as the "sole mouthpiece of the nation in its dealings with other nations," the Justices in the Palmer case did indicate that recognition might 52 not be an exclusively presidential preserve. 50Ibid.. 635. ^Ibid., 643 (emphasis added) . ^^Small and Jayson, eds., The Constitution of the United States, 516. 32 Justice William Johnson, on circuit in 1819, urged some judicial independence in recognition cases. Courts . . . may often be called upon to deduce the fact of na tional independence from history, evidence or public notoriety where there has been no formal recognition. * * * There exist many nations at this day which may claim of courts of international law all the rights of independent nations and may be judicially recognized as such, not withstanding no act of government has acknowledged them in that ca pacity .53 But Johnson, who wrote separate opinions in both Rose v. Himely and United States v. palmer disagreeing with the reasoning of the majority, never convinced his Supreme Court colleagues of the soundness of his notions. And the Court in recognition cases, with great pre dictability, decided that recognition was a purely political question; that quite properly the judiciary could not tread the devious and 54 Intricate path of politics. It explained its position as in the palmer decision on the bases of the delicacy and difficulty of the situation. It pointed out the danger of embarrassing the executive. But most of all it justified judicial deference on the basis of the constitutional separation of Quoted, Jaffe, Judicial Aspects. 139. See also, John Bassett Moore, "The New Isolation," American Journal of International Law, XXVII (1933), 607, at 615-616. 54 The Nereide, 9 Cranch 388 (1815), 423. 33 powers. Foreign relations were vested in the political departments of the government and the courts had no place in their conduct. In summary, the Supreme Court's decisions during the first forty years under the Constitution clearly laid the foundation of judicial deference in foreign policy questions. During the same time, active assumption of diplomatic power by the President--and a dearth of judicial decisions on the subject--strengthened the exercise of plenary presidential authority. The neutrality cases failed to answer the question of presi dential versus legislative authority to determine the policy of the United States in the matter of neutrality. This was true because the cases never raised the question. Presidential initiative stood un challenged in the Court. Thus Washington's unilateral proclamation of American neutrality set a precedent for the future exercise of presi dential power. The decisions in this area, as previously noted, also had a posi tive result in setting standards for neutrality that policy makers continue to honor today. But the Court held aloof from passing on neutrality as such. The decision to maintain a neutral status belonged to the political not the judicial departments. Thus while refusing to enter into the pros and cons of the national policy, the Court did articulate and enforce the rights and obligations incumbent upon neutral states. 34 In Che early recognition decisions Che Court acted as midwife to the doctrine of political questions. Future courts would accept with little question the precedent of deference to the policy makers on this issue. The judicial withdrawal enlarged the authority of the political departments of the government and, uninhibited by legal niceties, they rapidly filled the vacuum left by judicial self-limitation. In regard to separation of powers in recognition matters, the Court hinted that the legislature might share some authority with the Chief Executive. But while calling for action the legislature never succeeded in asserting a more direct role in this field. As a conse quence, presidential preemption of the power of recognition stood un challenged. The Court's opinions contained no discussion of fundamental policy factors behind the legal explanations of the decisions. Yet the political question doctrine provided unity in external relations when it was badly needed by the uncertain new ship of state. By not questioning the policies of the political departments, the Court enabled the country to speak abroad with but a single voice. CHAPTER II TREATIES AND TERRITORIAL QUESTIONS By the end of the first decade of the 19th century the presence of vast western lands acted as a constant force distracting American attention from foreign affairs. In 1803 the United States nearly doubled its size when it acquired Louisiana. And before the end of the second decade, the Transcontinental Treaty concluded with Spain in 1819 added Florida to the national domain. The young nation had hardly digested these territories when it annexed Texas and conquered a huge tract of the Republic of Mexico. It is not surprising that domestic matters, most especially the disposition of territories to the west and south, increasingly called for popular and official attention. People thought more about land titles in Louisiana or Florida than about the problems of neutrality, or recognition. By 1829 foreign policy had taken a decided back seat to domestic politics. When the nation's attention did stray beyond its borders its concern was with expansion or with the definition of national territorial limits. Since in each case, excepting the annexation of Texas, the United States had acquired these new lands through a treaty, their language became of paramount importance. Americans were concerned 35 36 with the effective date of a treaty, with the exact definition of the territory included in the grant, with the powers of various officials under the agreements. But though the context of the cases changed with questions of boundaries and treaties replacing concern over rights and obligations in the Atlantic Ocean or recognition in Latin America, the Court's opinions still had the effect of further defining its part in foreign affairs. In so far as the cases concerned treaties, the Court seemed especially well suited for this role. A treaty was nothing more than a contract between nations. And neither tradition nor training had placed any group of men in a better position for the interpretation of contracts than a court. It could say with assurance that the construction of a treaty is a judicial question not a political one. And to this it brought 1 judicial canons of construction and legal precedents. Clearly, inso far as individual rights were at issue, the Court was competent. Treaties create nunicipal law which is binding on persons and property within the United States. In this regard they are like domestic statutes and the judiciary is fully qualified to interpret and to enforce their provisions. But having once affirmed the princi ple that treaty construction, insofar as municipal law is involved, *Tor a summary of the maxims developed in treaty interpretation, see Digest of United States Supreme Court Reports, XIII, (Rochester, 1951), 268ff. 37 was "the peculiar province of the judiciary," the Court opened the door to the political questions doctrine that it had sired earlier in the recognition cases. It noted the clear policy factors Involved in questions like negotiation, execution, violation or termination of a treaty. These matters were too clearly political to be subject to 2 judicial evaluation. The Court refused in such cases to challenge the decisions reached by the President or Congress. The matter of construction, however, remained--in theory— the concern of the courts. But whatever it might say regarding its authority in these cases the Supreme Court bowed to the interpretations put upon a treaty by the political departments when the matter had external as well as internal consequences. Jefferson, fully aware of the Importance of the isle of Orleans to the western settlers in the United States, undertook efforts to acquire that territory. The intended transfer of the whole of Louisiana from Spain to France meant that any negotiations for pur chase had to be conducted in Paris rather than Madrid. Jefferson therefore dispatched James Monroe and Edward Livingston to the French capital with instructions to purchase Mew Orleans and, if possible, the Floridas. There, they found that diplomatic, military and economic reverses made Napoleon ready to dispose of the whole of Louisiana. The possibility of such a huge acquisition, however, raised some embarrassing constitutional questions. ^Post, Political Questions. 81ff. 38 The ConstituCion, as President Jefferson well knew, was silent regarding territorial additions. And the President, eager to acquire Louisiana, saw no alternative to a constitutional amendment. But under the pressure of fast moving events he stood ready to use the treaty- 3 making process to add that territory to the United States. In retrospect it is obvious that he could have justified the purchase of Louisiana by accepting the doctrine of implied powers. By implication the powers to enter into treaties and to conduct war carried with them the right to acquire territory gained through agreement or conquest. Or as an alternative, he could have regarded territorial additions as an inherent power for which he needed no constitutional sanction. He did neither. Rather, without explanation or justification, Jefferson presented the treaty to the Senate hoping to accomplish what 4 was necessary with little or no discussion of its legality. But the Federalists would have none of it. When the debate on 5 the treaty opened they attacked it as unconstitutional. They did not dispute the power of the nation to acquire additional territory. In stead they concentrated their attack on the problem of disposition of 3 For a general history of the Louisiana acquisition, see Henry Adams, History of the United States, II, (New York, 1891), Chs. IV, V, VI; for the constitutional considerations, see Everett S. Brown, The Constitutional History of the Louisiana purchase 1803-1812 (Berkeley, 1920); Westel Woodbury Willoughby, The Constitutional History of the United States (New York, 1910), 328-330. 4 Saul K. Padover, ed., The Complete Jefferson (New York, 1943), 401-402. See also Adams, History, 92. ^Brown, Louisiana Purchase, 34ff. 39 6 the territory once the country acquired it. The incorporation of new states, argued the Federalists, would terminate the old union. And the alternative of holding Louisiana in permanent territorial status meant embarking on a career of imperialism. Article IV, Section 3 of the Constitution did provide for the admission of new states from territory held by the United States. Congress by this language was empowered to make the necessary rules and regulations for such new states. But, Federalists argued, this section applied only to territory held by the nation at the time of the constitutional ratification. Louisiana, in such a case, was excluded from its provisions. The Jeffersonians in the Senate defended the acquisition--which the Federalists hadn't disputed. Their defense of the treaty relied upon the implied powers argument. The problem of disposition of the Louisiana territory, once acquired, they maintained, was not at issue J In October, 1803 the Senate approved the treaty by more than the necessary two-thirds. And, Jefferson, aware of the necessity of an appropriation to finance the purchase, also obtained House approval. Despite constitutional embarrassments the United States had acquired a new domain through the treaty making process. ** Brown, Louisiana Purchase, 34-35. 7 Brown, Louisiana Purchase, 53ff. 40 The Jeffersonians in Congress, assuming Che Constitution did con fer authority upon the legislature to regulate and ultimately to admit new states passed a measure creating a territorial government for the Louisiana Territory. The Federalists' theoretical objections remained unanswered. Jefferson's supporters, forgetting their constitutional qualms, passed these measures because their president urged them to do so. Only Senator William Plumer contended that the legal Issues 8 should be left for resolution in the courts. However, as a noted constitutional writer, Carl Brent Swisher, later observed, the bulk of the "congressmen indicated no awareness that there was a tribunal apart from Congress which would have the last word in the determination of 9 the constitutional question." It was not until twenty-five years later, and then not over the matter of Louisiana but over the acquisition of Florida, that the Supreme Court passed on the power to acquire and govern new territory. The case was that of the American Insurance Co. v. Canter, decided in 10 1828. The United States had, in 1819, acquired Florida from Spain by a treaty which provided for the incorporation of Florida into the g Carl Brent Swisher, American Constitutional Development (2d edition, Cambridge, 1954), 125. Q ?Swisher, American Constitutional Development, 126. I01 Pet. 511 (1828). 41 Union "as soon as may be consistent with the principles of the federal constitution." In 1822 and 1823 Congress passed acts creating a terri torial government in Florida and providing for courts with limited jurisdiction to be created by the legislature of the territory. An insurance company filed an action for restitution of part of a cargo carried in a ship wrecked off the coast of Florida. The in habitants along the coast had taken the cargo, which was saved, to Key West where a Florida territorial court decreed it be sold. One Canter purchased the property sold under the court's decree. The insurance company challenged the conqietency of the Florida territorial legislature and the tribunals it had created. In a brief but signifi cant opinion Chief Justice Marshall settled any question that remained regarding the power to acquire territory by treaty and subsequently to annex it to the United States. "The constitution," he wrote, confers absolutely on the govern ment of the Union the powers of making war and making treaties; consequently, that government pos sesses the power of acquiring ter ritory, either by conquest or by treaty Marshall's opinion completely accepted the view that constitutional implied powers justify territorial additions. The American Insurance Company case approved the Florida acquisition and, inferentially, the Louisiana purchase. The 11 Ibid., 542 42 treaty-making department could make territorial additions to the United States and had unquestioned power, derived either from the power to acquire territory or from the power to make all needful rules and regulations concerning a territory, to provide for its government.12 The case raised no question of separation of powers. Nor did the Court find it necessary to invoke the political questions doctrine. But the approval of annexation set the stage for questions that would require it to speak out on both matters. The major problem raised by the acquisition and incorporation of Louisiana and Florida was that of land title. Real property holders realized their claims often depended on the definition of the boundaries of the territory, the date of transfer of the land to the United States, the power of officials to effect a transfer to a purchaser and similar problems. The answer to these questions depended, in turn, upon the language of the treaty between the United States and the ceding power. For such treaty interpretation, the contestants over a parcel of real estate naturally turned to the courts. But the analysis of a treaty's language often took the judiciary into areas that it felt were better left to the President or Congress. The case of Foster v. Neilson decided in 1829 serves as an ex ample of the extent to which the judiciary abandoned the "peculiar province" of treaty Interpretation to the political branches of govern- 13 ment. The case concerned an action to recover from one Neilson land 12Ibid., 542-53. 132 Pet. 253 (1829) . 43 located between the Mississippi and Perdido Rivers. Both Spain and the United States claimed sovereignty over this territory until 1819 when Spain in the Transcontinental Treaty ceded the contested area to the United States. Americans based their title to the area between the rivers on the Louisiana Purchase. Spain maintained that the Treaty of San Ildefonso in which she retroceded Louisiana to France— just prior to the French sale to the United States— had not included the area in dispute. Rather, she asserted that this territory was a part of West Florida and purely Spanish territory. Foster, the claimant, held a title based upon a grant, made by the Spanish governor of Louisiana in January, 1804. Neilson denied the validity of the Spanish grant, claiming this property was within the territory acquired by the United States from France in 1803. The language of the treaty of St. Ildefonso became important in determining the extent of French claims at the time France made the transfer to the United States. In Washington, they construed the language to encompass the area in dispute. Madrid's interpretation excluded the property in litigation from the retrocession. The Supreme Court concluded that the "language of the article ^defining the extent of French territorial authority/ admit either con- struction." 14 But since the political departments of the United States had interpreted the language in a particular way, their action took from the Court its independence of judgment as between the individual 14lbid., 306. 44 parties to the suit. It made the case "more a political than a legal" 15 one. If those departments which are instrusted with the foreign inter course of the nation, which assert and maintain its interests against foreign nations, have unequivocal ly asserted its rights of dominion over a country . . . it is not in its courts that this construction is to be denied The Court acknowledged that it might have come to a different con clusion had the political departments remained silent. But since the issue between the plaintiff and the defendant had become a political one it no longer mattered how the Court, applying its canons and precedents, might have interpreted the treaty. The judiciary is not that depart ment of the government to which the assertion of its interests against foreign powers is confided; and its duty, commonly, is to decide upon individual rights according to these principles which the political de partments have established. If the course of the nation has been a plain one, its courts would hesi tate to pronounce it erroneous. We think, then, however Individual judges might construe the treaty of St. Ildefonso, it is the province of the court to conform its decisions to the will of the legis lature, if that has been clearly expressed.1? 15Ibid., 309. 16Ibid., 306. 17 Ibid., 307. 45 The Foster case was not the only case which called on the Court for treaty interpretation. Nor were the parties in Foster unique in their failure to obtain judicial relief. The Court in 1832 in United States v. Arredondo again conceded its duty "to follow" the decision of 18 the other departments. And when the same question came before the 19 Taney Court in 1838 in Garcia v. Lee it gave a comparable decision. The issue again turned upon the construction of the treaty of St. Ildefonso and the treaty of 1819 ceding Florida to the United States. Taney, citing Foster v. Neilson, held it belonged to the pol icy-making departments to determine the boundary between West Florida and Louisiana. That "boundary line determined on as the true one by the political departments of the government, must be recognized as the 20 true one by the judicial department. . . ." Neither Arredondo nor Garcia ended the suits raising the question of authority between the Perdido and Mississippi Rivers. It came up again in 1849. "Whether, by the treaties of St. Ildefonso and of Paris, the territory £Ln question7 was ceded to the United States, is a ques tion into which this court will not now inquire," wrote Justice 21 Daniels in Reynes v. United States. He continued, ^^U.S. v. De la Maza Arredondo. 6 pet. 691 (1832), 711; for other statements to same effect see, De la Croix v. Chamberlain, 12 Wheat. 599 (1827), 602; U.S. v. Lynde, 11 Wall. 632 (1870) ; In re Cooper. 143 U.S. 472 (1891), 502. 1912 Pet. 511 (1838) . 20 Ibid., 520. 2l9 How. 127 (1849), 153. 46 The Legislature and executive de partments of the government have determined that the entire terri tory was so ceded. This court have £siq7 solemnly and repeatedly de clared , that this was a matter pe culiarly belonging to the cognizance of those departments, and that the propriety of their determination it was not within the province of the judiciary to contravene or question.^2 All of these cases involving treaty interpretation and national territorial boundaries only extended what was already the prevailing judicial attitude in foreign affairs cases. Where its decision might affect American foreign policy, the Court turned to the political departments. If the political departments had spoken, it adopted that interpretation and sent the parties of the suit to the legislature or the executive for their remedy* Here the Court acted as it had in the recognition cases. But if the political departments had not as they had in the case of Louisiana and Florida boundaries, established a policy, the Court proceeded to look to the de facto situation and make its own determin ation on the merits of the case before it. Here the Court turned away from the pattern of the recognition cases and acted more as it had in the neutrality cases. Two cases illustrate this other side of the Court's attitude. During the War of 1812 England had occupied a part of the Maine coast. During the period of English control the citizens of that area had been 22Ibid.. 154. 47 forced to observe British laws and pay British taxes. In 1819the Court in the case of United States v. Rice took judicialnotice of the 23 occupation. Justice Story noted that under these circumstances, The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and sub mitted to the conquerors.2^ The exceptional thing in this decision was the judicial assumption of authority to decide the issue before it without inquiry of the politi cal departments. It acted in this way even though national boundaries, as observed in the cases of Louisiana and Florida, were political questions. In 1834 in the case of Keene v. M* Donough, the Court upheld the validity of the adjudication of a Spanish tribunal in Louisiana after 25 the cession of Louisiana to the United States. “We know, historical ly," wrote Justice Thompson, “that the actual possession of the terri tory was not surrendered until sometime after these proceedings took place." The Court took note that, . . . the country, although ceded, was de facto, in the possession of 26 Spain, and subject to Spanish laws. 234 Wheat. 246 (1819) . ^ Ibid., 254. 258 Pet. 308 (1834) . 26Ibid., 310. 48 These two territorial cases illustrate a kind of halfway house for the Court in matters closely related to foreign policy. It faced an obligation to do justice for the litigants appearing before it and at the same time felt a concern lest it embarrass the diplomatic pol icy makers. In the Rice and Keene cases it decided the issue between the parties on the ground that whatever the result it would not em barrass the political departments. In Rice the question which was important to the parties was un important in Anglo-American relations. Britain and the United States were at peace; British troops no longer occupied Maine. The political department expressed no view on the matter. In Keene the political branch had again established no policy and as a consequence the Court felt free to ignore the precedent of Foster v. Neilson. By refusing to admit that the Keene case was one of treaty Interpretation, the Court excluded the question from the political questions doctrine. When the other branches had set a policy the Court deferred to their judgment--even in treaty interpretation for which the judicial process seemed uniquely qualified. It did distinguish matters in which the political departments had spoken from those in which they had remained silent and justified judicial intervention in the latter situation on the ground that the matter either had ceased to be or had not yet become a political question. In 1845 Texas joined the Union but only after domestic politics had long complicated moves for annexation. This revived the question 49 of authority to add territory. For while American Insurance Co. v. Carter had settled the constitutionality of acquisition through the treaty process, Texas had not come into the Union in that way. Aware that the treaty-making power would reject acquisition, President Tyler had turned to a new procedure. A joint resolution added the new area to the United States. In 1868, the United States Supreme Court in Texas v. White found Texas had, through the joint resolution, become 27 constitutionally a part of the Union. The nation could acquire territory either by treaty or joint resolution. The Court regarded both as constitutional. In 1850 President Filmore acquired territory without prior con- 28 sultation with Congress through an executive agreement with Britain. By this agreement the United States added Horse Shoe Reef to its domain, probably because of the limited size of the territory in volved, the matter was never in the courts. The precedent stood un challenged: the nation could constitutionally acquire territory through this third technique. The acquisition of California, since it had been added by a treaty with Mexico, did not provide an innovation as had Texas' annexation. But the date at which it ceased to be Mexican territory caused a flood of litigation for the Court. The Justices concluded 277 Wall. 700 (1868). 28 U.S. Department of State, Treaty Series, No. 444 (Washington, 1911) . that the authority of Mexican officials ended on July 7, 1846--the date the political departments had selected. The political department of the government at least appears to have designated that day as the period when the conquest of Cali fornia was completed, and the Mexican officials were displaced, and in this respect the judiciary follows the action of the political department.^ The Civil War and Reconstruction turned popular, political and judicial attention away from territorial concerns. But with the return of a kind of normality to the nation, the question of terri torial acquisition returned to the Court. It reviewed a legislative grant of authority giving the executive power to add territory at his own discretion and by his own decree. The case which raised the legality of this approach was Jones v. 30 United States. It involved the question of United States authority over a guano island, Navassa, in the Caribbean. An American jury found one Jones guilty of a murder committed on that island. Jones denied the United States' jurisdiction, which was based on a congressional statute passed in 1856 granting the President authority on his own initiative to assert United States possession over guano 29 U.S. v. Yorba, 11 Wall. 412 (1870), at 423. See also U ,S. v. Pico, 22 How. 406 (1859) ; Hornsby v. U.S.. 10 Wall. 224 (1869). 30137 U.S. 202 (1890) . 51 islands not already claimed by other states. In 1859 the President, through his Secretary of State, proclaimed Navassa an American pos session. Justice Gray's opinion for the Court conceded that there were a variety of ways to make territorial additions to the nation. And while some of these, such as a treaty or joint resolution,might depend upon the Constitution for their validity, others, such as an executive agreement, also derived their legitimacy from the inherent right of sovereignty. By the law of nations, recognised by all civilized states, dominion of new territory may be acquired by discovery and occupation, as 21 well as by cession and conquest. . . . Gray's opinion did not define the respective authority of the executive 32 or legislature to acquire territory "inherently" . But if either of the politicaldepartments determined that certain territory should be added to the United States, the Court apparently would recognize its decision. In this case, the Court concluded that the United States had jurisdiction on Navassa Island. In 1893 the case of Shively v. Bowley, which concerned land claims granted at the time Oregon was a territory, gave the Court a 33 further opportunity to discuss the bases for territorial acquisition. 31 Ibid.. 212. 32Ibid. 33152 U.S. 1 (1893) . 52 Once again, Justice Gray accepted the view that the nation had inherent 34 authority to acquire new lands. The Supreme Court accepted a wide variety of procedures by which the nation could add to its domain. Some of these procedures had their source in the granted or implied powers of the Constitution, others came from an extraconstitutional source. In at least one area, in herently derived powers had earned judicial acceptance. 34Ibid.. 50. CHAPTER III PROBLEMS OF THE CIVIL WAR The Civil War thrust far more complex constitutional problems before the Court than had the wars with England and Mexico. Neither the War of 1812 nor the Mexican war had seen the extreme centralization of power in Washington that the Civil War produced. Nor had the office of president in any earlier conflict held such power as that which Lincoln exercised during his presidency. The Court made some difficult decisions concerning this centralization of power as well as the constitutional nature of an undeclared civil war and the legality of measures taken in the conduct of hostilities. It decided when, for legal purposes, the war had begun and ended. It faced the diplomatic problem created by the blockade of Southern ports. And it examined the nature of the Union as tempered on the forge of civil war. The gravity of these problems tended to push other matters into the back ground. Concern over the direction and consequences of the war eclipsed the relatively less important questions of territorial expansion and definition. Other foreign policy questions seemed, for the time being, remote and inconsequential ^See generally James G. Randall, Constitutional Problems under Lincoln (New York, 1926) . 53 54 The Civil War profoundly affected the Supreme Court. And while the issue of civil liberties was probably the most notorious controversy stirred up by the hostilities, it was the problem of legislative-exec utive relations that was, in the long run, most significant. This con cerned the unprecedented magnification of presidential authority. Lincoln, believing the President's war powers gave him extraordinary authority in times of crisis, acted in a way that upset the traditional balance of powers. Under the pressure of circumstances the Chief Exec utive could--and should— act to save the nation even if it required that he temporarily ignore established legal procedures. This attitude was particularly apparent in the lengths to which Lincoln carried rule by presidential proclamation and executive order. The precedent he set became of even greater significance when in the twentieth century the line between war and peace became increasingly more difficult to find. A second consequence was the judicial extension of the political questions doctrine to the determination of the commencement and termination of hostilities. And the third, the importance of which was for the most part limited to the immediate diplomatic problems, was the dilemma resulting from official Washington* s Insistence that the hostilities were an insurrection not a war. Lincoln delayed taking any action against the successionists until the bombardment of Fort Sumter forced the conflict. Then he acted--and he did so without Congress. From April 14, 1861 to July 4th of the same year, Lincoln by presidential decree and proclamation 55 determined the course of the Union. This was the period many comments- 2 tors have called the "executive dictatorship." Among the important measures taken without congressional author ization were the calling out of the militia, the suspension of the writ of habeas corpus, the call for volunteers for a presidentially enlarged army, and, most significant to this discussion, the proclamation on April 19th of a blockade of a part of the Southern coast, which on April 27th he extended to include the whole of the Confederacy. Con gress did not ratify this action until late that summer. This unilateral action raised some hard constitutional questions. Did the President anywhere in his vast resevoir of power have the right to act as he had done without prior consultation with the legislature? Assuming this was answered affirmatively, it created a host of other problems. What were the hostilities— a war, a rebellion, an insur rection? What were the President's powers in each case? And when, for legal purposes, had the hostilities commenced--at the first instance of presidential action or at some later date when the legislature had ratified his preliminary moves? In addition the Court found itself confronting the contradictions in Lincoln1s proclamation of a blockade which assumed the presence of a war, while for many reasons the politi cal departments in Washington refused to admit that this was anything 2 See especially Clinton Rossiter, Constitutional Dictatorship (Princeton, 1948), c. XV, and Edward S. Corwin, Total War and the Constitution (Mew York, 1947) . 56 other than an insurrection. The insistence that Europeans accept these contradictory positions raised serious international problems for the Executive, and knotty questions for the Court. The Constitution grants the power to declare war to the Congress of the United States. The chief executive has no independent authority to initiate a war--although as Commander-in-Chief he is responsible for its conduct once declared by Congress. In the case of rebellion or insurrection, however, the President on his own initiative can move against the rebels as traitorous indi viduals without the formality of additional congressional action. Lincoln had so acted, and so long as the hostilities remained a domestic insurrection and not a war, he had therefore some theoretical support for the constitutionality of his actions. Lincoln could also point to examples from past national history as precedent for his conduct even if the conflict was a war and not a rebellion. Practical considerations had, in the past, enlarged the scope of presidential authority beyond that which the Constitution specifically conceded to the office. International realities required that the president be able on occasion to respond to challenges to national security without awaiting a formal declaration of war by the United States Congress. Practically he must have the power to defend the nation. This of course raised the problem of the limits of the chief executive's authority as commander-in-chief. In actuality the power to insure the national security meant that the President, in de fence of the nation, could take it into a conflict. Congress at this 57 point had little option. Necessity demanded that it recognize the existence of an armed conflict. A declaration of war became a formality once the Congress had acknowledged its de facto presence. Prior to the Civil War, Presidents had responded to challenges from other nations without awaiting congressional permission even when as a result of these moves the likelihood of war seemed Immediate. Jefferson had ordered a naval squadron to Tripoli in 1801. Hamilton at that time defended the action and anticipated the later opinion of the Supreme Court. . . . when a foreign nation declares or openly and avowedly makes war up* on the United States, they are then by the very fact already at war and any declaration on the part of Con gress is nugatory; it is at least unnecessary.3 Hot until 1802 did Jefferson obtain congressional authority for his action. Madison and Monroe sent American expeditions into Florida in 1813 and 1818 to pacify that disorderly Spanish colony. In 1831 Jackson moved to protect American shipping interests in the Falkland Islands by dispatching a U.S. cruiser to those waters. And even more notori ously, President Polk in 1846 ordered General Zachary Taylor into dis puted territory along the Texas border. This action resulted in one full scalebattle before Congress had a chance to recognize that the United States was at war with Mexico. 3 Quoted in James G. Rogers, World policing and the Constitution (Boston, 1945), 36. Certainly the challenge facing Lincoln was greater than that which faced any of his predecessors. The South's secession threatened to destroy the Union as an entity. The President believed the disso lution of the nation was pure rebellion against a federal authority which all the states were historically and legally bound to honor. To Lincoln, the Confederates' action was not war, it was insurrection. Holding to this view, he could justify executive action to crush the revolt without consulting Congress. The fact that earlier presidential actions responding to foreign military challenges had not yet attained sufficient respectability to be relied upon contributed to the expediency of maintaining the fiction that the Civil War was not a war at all. The Union might pretend that it contested only with traitors, but its actions belied its words. The blockade was certainly an unusual— and illegal--device against an insurrection. In international law a blockade could only be established if the states involved were actually at war. Restrictions imposed under conditions other than war could be ignored by the nations of the world. To justify the blockade, therefore, there had to be a war. And to have a war there had to be at least two belligerents. But Lincoln refused to concede belligerent status to the Confederacy. This came in part as a result of his view of the nature of the Union. 1 hold that in contemplation of universal law and of the Consti tution the Union of these states is perpetual. . . . The Union is 59 much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence In 1776. It was further matured, and the faith of all the then thirteen states expressly plighted and en gaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordain ing and establishing the Constitu tion was "to form a more perfect Union But his attitude also had practical considerations behind it. To admit a war existed would be to confer on succession!sts the rights due belligerents and possibly invite recognition of the Confederate States 5 of America by European nations. In 1863 the United States Supreme Court reviewed the Prize Cases, a series of suits raising the question of the legality of Lincoln's presidentially proclaimed blockade. Congress had not approved this measure until August, 1861 when it passed legislation ratifying all acts, proclamations, and orders Issued by the president prior to that 6 time. The opinion that followed went far in providing a judicial 4 James D. Richardson, ed., Messages and Papers of the Presidents. VII, 3208. ^See Charles Warren, The Supreme Court in United States History (Boston, 1937), Vol. II, 381, note 2. 6 2 Black 635 (1862) . 60 answer to the question of the legal nature of the Civil War. It also served as a judicial review of some phases of the presidential dictator ship . In these cases ships attempting to enter Southern ports had been taken as prizes. The owners of the vessels taken claimed the blockade was illegal, according to accepted international practice, since the United States was not technically at war. The official governmental expressions seemed to give support to the owners' argument that "no war” existed. If this was the case, neither Lincoln's proclamations nor con gressional action--short of declaration of war— could make the blockade legal. Following the logic of this contention the Court would have to 7 find that the taking of prizes was not proper. The government on the other hand, argued for the blockade and the power of the President to proclaim it but, at the same time, main tained the theory that the conflict was only an insurrection. Lincoln, as Commander-in-Chief, could meet hostile action initiated by anyone against the United States, argued government counsel Richard H. Dana. Further, he maintained, The Government is carrying on a war. It is exerting all the pow ers of war. Yet the claimants of the captured vessels not only seek to save their vessels by denying that they are liable to capture but deny the right of the Government to exercise war power--deny that this can be, in point of law, a war. So the Judiciary is actually, after ^See Warren, The Supreme Court, II, 381-382. 61 a war of twenty-three months' dur ation, to decide whether the Gov ernment has the legal capacity to exert these war powers. . . . ® By some slight of hand the government's counsel sought to justify the use of the war powers while no "war" existed. And the Court--at least a majority of it— went along with the Administration's argument. First it declared the blockade lawful for at the time it was instituted a state of war was in fact present. "A war," said the Court, "may exist where one of the belligerents claims sovereign rights as against the other.” This is true in the case of 9 a civil war even though it "is never solemnly declared." And, As a civil war is never publicly proclaimed. . . its actual exist ence is a fact in our domestic history which the court is bound to notice and to know.10 Hostilities can be both war and an insurrection. Armed opponents can be both enemies and traitors.**’ The Court said further that whatever the conflict be cabled the President is "bound to accept the challenge without waiting for any 12 special legislative authority." No government need sit by carefully ^Quoted in Warren, The Supreme Court, II, 382. ^prize Cases. 2 Black 635 (1863), 6 6 6 . 10 Ibid.. 667. U lbid.. 670. 12 Ibid., 668. deliberating the response to be made while the state is toppling about its ears* The challenge, wrote Justice Grier, "sprang forth suddenly from the parent brain, a Minerva in the full panoply of war. The presi dent 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 it by 13 him or them could change the fact.11 Lincoln's blockade was lawful. And even if it had not been so before July, the measure of that special session of Congress had ratified the unilateral presidential procla mations . But certainly the Court's role was ambivalent. Justice Grier noted at one point in the opinion that no one could ask a court to affect a technical ignorance of the ex istence of a war, which all the world acknowledges to be the great est civil war known in the history of the human race. . . . ^ For the Court to ignore the actual state of affairs and listen only to the President's statements would result in the finding that the blockade was unlawful. Such a decision would certainly embarrass and "cripple the £political7 arm of the government and paralyze its power by subtle definitions and ingenious sophismsThe Court, therefore, took judicial notice of the war even though it could not do so consistently with the political questions doctrine. 62a But while in the prize Cases the interests of the political departments were best served by the Court's looking behind the official political declarations, this was not true on most occasions. Judicial inquiry which did not accept policy declarations at face value but instead examined the actual state of affairs could be embarrassing. Justice Grier was therefore closer to the usual judicial attitudes when he observed that judicial deference should ordinarily be the Court's course. Whether the president in fulfilling his duties, as commander-in-chief, in suppressing an insurrection, has met with such armed hostile resist ance, and a civil war of such alarm ing proportions as will compel him to accord to them the character of belligerents, is a question to be decided b£ him, and this court must be governed by the decisions and acts of the political department of the o which this power was Thus in the course of one opinion the majority of the United States Supreme Court both Ignored and reaffirmed the conception of the politi cal questions doctrine. Four Justices, including Chief Justice Taney, dissented. They too accepted the legality of the blockade after Congress had acted to ratify Lincoln's proclamations. But they did not find presidential action prior to the legislative approval legal. 16 Ibid., 698 63 "ZTh(7 president” they concluded, "does not possess the power under the constitution to declare war or recognize its existence within the meaning of the law of nations . . . and thus change the country and all its citizens from a state of peace to a state of war. . . This power belonged to Congress alone. If Lincoln was only acting to put down a rebellion, as he claimed, how could he justify a blockade? The dissenters saw no way out of the apparent inconsistency between executive words and deeds. If a Presi dent wanted to wield his war powers, then he must first go to the legislature and get its recognition that the nation was at war. If, on the other hand, he wished to avoid the international problems which a declaration of war would raise, he must be content with more limited authority. There seemed no logical way to resolve the dilemma. Therefore, concluded the dissenters, until Congress acted no war existed. And until a war existed no blockade could be lawful. The judicial acceptance of presidential action without any formal declaration of war raised other problems. It left unclear the date at which a war could be said to start. Formerly, the declaration of Con gress made the date of the commencement of a war a simple matter. Now, unilateral presidential action could also thrust a country into a state of war. The Court recognized this situation in the case of The pro- tector, and fixed the beginning of the war from a presidential act.18 17Ibid., 670. 1812"Wall. 700 (1871). 64 Questions concerning the beginning and ending of a war, said t’-e Justices in this case, were not judicial. Rather, they were political. It, therefore, looked to the acts of the political departments in order to determine the beginning of the war. If the president had made a political decision the Court would not trouble itself with the effect of his decision on the separation of powers. It followed the same path in cases which raised the question of the date of the termination of war. Clearly the commander-in-chief, as part of his military authority, could terminate hostilities. But the formal termination of war seemed to depend on a peace treaty. Therefore the treaty-making authority--the President and the Senate— should control this matter. In actual practice, however, the treaty- making power held no such monopoly. Just as no formal declaration was necessary to open the Civil War, so no peace treaty was needed to close it. In United States v. Anderson, the Court found a presidential 19 proclamation sufficed to terminate the conflict. The future would make the importance of this attitude abundantly clear. Wilson at Paris and Roosevelt at Yalta entered into agreements far more important in shaping the postwar world than the formal peace treaties subsequently concluded with senatorial concurrence. Why did the Court apply the political questions doctrine to this matter? The cases concerning the beginning and end of the Civil War did not involve foreign affairs questions. They were for the most part 19 9 Wall. 56 (1869) , at 71. 65 concerned with domestic insurance claims. They could have been de cided without judicial deference. A candid discussion of the situation would have been embarrassing. To declare the President's action between April and July, 1861 unconstitutional would be tantamount to a judicial statement that no war existed during that period. This flew in the face of reality. On the other hand, the Court could not openly concede to the President authority to begin a war— a power clearly denied him by the Constitution. Such an open admission would expose the true weakness of the checks and balances when diplomacy or war was involved. The Court avoided this dilemma by declaring the commencement and termination of war a political question. It then deferred to the judgment of either of the political departments without deciding where 20 the boundaries lay between them. The Justices felt the pressure of war. They understood, as had Thomas Jefferson that In times of peace the people look most to their representatives, but in time of war to the executive only . . . .21 20 Of course, the Justices could choose the incident that in their opinion best seemed to determine the question before the Court. This was in effect judicial policy making. For example Brown v. Hiatts, 15 Wall. 177 (1872) ; Adger v. Alston, 15 Wall. 555 (1872) ; Batesville v. Kaufmann, 18 Wall. 151 (1874) ; Lamar v. Brown. 92 U.S. 187 (1875); Carrol v. Greene, 92 U.S. 509 (1875); and Raymond v. Thomas, 91 U.S. 712 (1875). 21 Ford, ed., Jefferson, V, 500. 66 Those who looked to Lincoln in 1861 found him ready to act. And though the legislature would vie with the President for some voice in war policy, the executive had such a head start that Congress could never catch up. Throughout the contest the Court stood on the side lines refusing to check Lincoln's assertion of his "war powers." The inability of the legislature and the disinclination of the judiciary to limit the President's exercise of extraordinary authority set precedents for future national efforts. Wilson, in the First World War, and Roosevelt, in the Second, enjoyed constitutional powers similar to Lincoln's. During the course of all three crises, the legis lature acted as though the Constitution was, in the words of a United 22 States Senator, "more or less suspended." In all three instances extreme restraint marked the Court's expressions regarding the presi dential war powers. This judicial deference toward even strained interpretations of the Constitution continued through the term of the conflicts. 22 Senator J. Hamilton Lewis in discussing the Lever Bill, see U.S., Congressional Record. 65th Cong., 1st Sess., 1917, LV, 4459. CHAPTER IV SEPARATION OF POWERS The Court's reputation which had been at its Lowest during the Civil War continued to suffer into the Reconstruction period* The Radical dominated Congress, concerned over the legality of its Recon struction Acts, stripped the Court of jurisdiction over such questions. The Justices, embarrassed by the spectre of Dred Scott, impotent in the face of Lincoln's dictatorship, and given to hollow polemics in civil liberties questions, seemed of little consequence. What they said and did was irrelevant. With Lincoln's death and the end of hostilities, the presidency, too, lost its heretofore dominating position in the federal power structure. Domestically the executive office was eclipsed by the legislature. A similar development took place in the field of foreign affairs. Historically, the President had monopolized the conduct of Ameri can diplomacy. Rarely had the legislature had more than limited success in challenging this executive domination. This disability stemmed from the nature of legislative power. Its only positive authority was— and is--the declaration of war, and as we have seen in the case of the Civil War even that may be ignored when the President takes 67 68 immediate action to protect the nation from an external or internal threat. In other foreign policy determinations, it must await executive initiative. The Senate approves or rejects— but does not initiate-- treaties. Congress can deny requests for appropriations, but it faces great difficulty in forcing the executive to spend money when he is not so inclined. The Senate can refuse confirmation of the president's diplomatic or ministerial nominations, but cannot appoint a minister itself. In short, congressional power is negative. The period following the Civil War was nevertheless one of those times when the national legislature, through the fullest use of its negative powers and with occasional ventures into the actual making of policy, did have a role in foreign affairs at least equal to that of the President. Overreacting to the strong executive leadership during the war, Congress ignored pleas for cooperation. A succession of weak Presi dents further encouraged the legislators in the belief that their judgment was better than that of the executive branch. The result was a series of congressional rejections of foreign policy proposals initiated by the President or his Secretary of State. The road that Congress was prepared to follow began to become clear in its opposition to the expansionist program of Secretary Seward. It first demonstrated its coolness toward Alaska--which no one, except Seward, who was always an Imperialist at heart, apparently wanted. The Senate, to its own surprise, approved the treaty of purchase in 1867 and the transfer was consummated. But the attitude of the House of 69 Representatives was far different from that of the senators. With a show of its negative power It refused the necessary appropriation of the $7,200,000 purchase money. The whole affair became Involved in the impeachment proceedings against Johnson and the charges and counter charges of corruption connected with the earlier approval of the treaty by the Senate. Only after a year's delay--on June 23, 1868--did it assent to the final appropriation for purchase Congress' continued uneasiness regarding Seward's expansionist dreams and its intention of having its will reflected in American foreign policy found further expression in its rejection of one proposal for American purchase of the Danish West Indies and another for annex- 2 ation of Santo Domingo. The Senate in 1867 also refused to accept a treaty which it believed would lead to deep United States involvement 3 in Hawaii. Even president Grant, an executive far more to the taste of congressional leaders than his predecessor, found no sympathy for his schemes of Dominican annexation or a naval base at Pago Pago, 4 Samoa. In 1869 the House joined with the Senate in another display of legislative intransigence. By joint resolution they rejected the '■U.S., Congressional Globe. 40th Cong., 2nd Sess., 1868, CLV, Part 4, 4052-55. See also Thomas A. Bailey, "Why the United States Purchased Alaska," Pacific Historical Review, III (1934), 39-49. Samuel Flagg Bemis, A Diplomatic History of the United States (4th ed., New York, 1955), 401. 3 Ibid., 399. Sj.S., Congressional Globe. 41st Cong., 2nd Sess., 1869-70, CLIX, Part 1, 53, 183, 190, 222, 225, 226 for senatorial reaction to pro posed Dominican annexation. 70 Clarendon Convention by which President Johnson had hoped to settle the vexing problem of the Alabama claims.^ And in 1871 it again protested the provisions of the Treaty of Washington for the arbitration of these claims. House spokesmen argued against the commitment of the United States to this treaty without prior consultation with the House of 6 Representatives. In addition to foiling executive programs, the Congress attempted to exert a positive influence on shaping the course of American diplo macy. The post-Civil War sessions echoed arguments Henry Clay had put forward four decades earlier. Indifferent to executive embarrassment, they passed a series of resolutions expressing sympathy for the rebels in Cuba. Pressure mounted within Congress for recognition of Cuban belligerency, despite Secretary Seward's strenuous opposition.^ ^U.S., Congressional Globe, 40th Cong., 3rd Sess., 1868-1869, CLV, Part 1, 581. 6 U.S., Congressional Globe. 42nd Cong., 2nd Sess., 1871, CLXXI, Part 1, 73ff. ^See John Bassett Moore, Digest of International Law (Washington, 1906), Vol. 1, 246. For a further discussion of recognition authority see U.S. Congress, Senate, 54th Cong., 2nd Sess., 1896-97, Documents 40 and 56. For House measures see U.S., Congressional Record, 54th Cong., 2nd Sess., 1896, XXIX, Part 1, 14; Ibid., 157; Ibid., 189; Ibid., 1897, XXIX, Part 1, 163, 326, 1118, 1151, 1612; for Senate measures see U.S., Congressional Record, 54th Cong., 2nd Sess., 1896, XXIX, Part 1, 39, 65; Ibid., 355, 357; Ibid., 531, 650, 745. For a full discussion of the same see Ibid.. at 650ff. and 745ff. 71 In no area did the legislature so dominate foreign policy during this period as in the regulation of aliens. As early as 1798 Congress had empowered the President to expel certain classes of aliens resident in the United States. But this measure was the exception proving the rule that until 1875 America had no restrictionist policy. At that time, however, it did provide for the exclusion of prostitutes and con victs, and in 1882 it extended the limitation to lunatics and those unable to care for themselves. And that same year Congress also passed the first of the Chinese exclusion acts which it modified but slightly 8 in 1884 and 1886. In this field the legislature showed its determination to have its way whatever the foreign consequences. Congressmen were far more sensitive to domestic political considerations than to possible inter national complications. They were bent upon asserting their authority to the fullest and indifferent to the counsel of those responsible for American diplomacy. The legislature derived its powers over aliens from its consti tutional control of commerce and from the extraconstitutional power to exclude or admit immigrants--inherent in the nation as a sovereign 9 state. The executive, on the other hand, wielded treaty and war O U.S., Statutes at Large. XXII, 58 (1882), U.S., Statutes at Large, XXIII, 115 (1884), U.S., Statutes at Large, XXV, 476 (1886). See Milton R. Konvitz, The Alien and the Asiatic in American Law (Ithaca, 1946), 1-2. 9 As to the latter source of power see Fong Yue Ting v. U.S., 149 U.S. 698 (1893), 711. Cf. Field dissent in that case at 737, 756 and 757. 72 making powers. The result was often a conflict between executive and legislative wills. In time, these conflicts took the form of lawsuits in which the Court conceded to the executive broad powers to admit, detain, expel or exclude aliens. The powers, however, were derived from congressional delegation of authority and were hedged round with 10 administrative regulations. The result was a limitation on executive authority to regulate aliens, even when such regulation was immediately tied to the conduct of foreign affairs. The clearest example of this 11 was found in Sino-American relations after 1868. Beginning in that year the United States and China had signed the Burlingame Treaty which provided for the free immigration of the 12 citizens or subjects of each state to the other. The United States was, at the time, more concerned with securing the mercantile privi leges of its citizens in China than with the possibility of emigration of Chinese to the American West Coast. But the economic conditions in the United States soon began to attract Chinese laborers. The rail roads eagerly seized upon coolies as an inexpensive and reliable source of labor. However, once the rails had been laid and the Chinese began 10See Niahimura Ekiu v. U.S.. 142U.S. 651 (1891). ^For an excellent account of American-Chinese relations to 1909, see Mary Robert Coolidge, Chinese Immigration (New York, 1909) . l2u .s., Statutes at Large. XVI, 739 (1868). 73 to compete with Irish and other unskilled laborers for employment, those affected urged measures to stem the Oriental tide. By the mid 1870's there was rising pressure on Washington for some law excluding Chinese 13 from the United States. Congressional agitation reflected the politi cal pressures on the coast where the labor vote could tip the scales in favor of either party. These laborers saw the Oriental as a threat to their economic well being, and congressmen of both parties catered to this emotional electorate. The 1876 California memorial to Congress summed up the attitude: Impregnable to all the influences of Anglo-Saxon life, they remain the same stolid Asiatics that have floated on the rivers and slaved in the fields of China for thirty cen turies of time .... We thus find one-sixth of our entire popu lation composed of Chinese coolies, not Involuntary, but by the unalter able structure of their intellectual being, voluntary slaves. . . . Is it not possible that free labor, unable to compete with these foreign serfs, . . may unite in all the hor rors of riot and insurrection, and defying the civil power extirpate with fire and sword these who rob them of their bread, yet yield no tribute to the State?^ In 1879 President Hayes faced a Congress urging restriction of Chinese "coolie" labor and it passed a bill which would have limited Chinese Coolidge, Chinese Immigration, 40, 52, 58, 259. 14 Quoted in Coolidge, Chinese Immigration, 83. 74 immigration to fifteen passengers per incoming ship. Hayes vetoed the measure on the ground that it violated American commitments under the Burlingame Treaty. 15 Congress, ignoring the international consequences of what amounted in effect to violation of the treaty's terms, tried but failed to override his veto. At this point, the executive, under heavy congressional pressures, entered into new negotiations with China. The result was the treaty of 1880 which allowed the United States to regulate, limit or suspend-- 16 but not prohibit— the immigration of Chinese. On the basis of this treaty the legislators in 1882 tried to suspend the flow of Chinese for 17 twenty years. And once again the president, now Chester A. Arthur, vetoed the bill as violating American treaty commitments. Congress then reduced to ten years the period of exclusion of Chinese from the 18 United States. Arthur felt constrained to sign this measure. The legislature finally had its way in the matter of the alien Chinese; it had passed the United States' first truly restrictive immigration law. In 1884 Congress added a provision for the registration of all Chinese laborers. This required that they obtain a certificate from *"^For veto message see U.S., House Journal, 45th Cong., 3rd Sess., 1878-79, 606. 16U.S., Statutes at Large. XXII, 826 (1880). *^U.S., Congressional Record, 47th Cong., 1st Sess., 1882, XIII, Part 1, 630. 18 U.S., Statutes at Large, XXII, 58 (1882). 75 the government end failure to do so terminated their legal right to remain. In 1886 Congress extended the law to prohibit return to the United States of former resident Chinese aliens without a certificate. Loss of the certificate meant that an alien was permanently barred from reentry. Hope was raised in 1888 for an agreement with the Chinese Government which would provide for the absolute exclusion of Chinese laborers for twenty years. When China paused to consider this dis tasteful proposal, an impatient American Congress acted unilaterally barring further Chinese immigration and voiding all outstanding certifi- 19 cates of reentry. In 1884 the Court became involved in this matter of alien regu lation. The Justices reviewed a part of the legislation passed in 1882 which provided for a tax on foreigners landing as passengers in ports of the United States. The decision in the Head Money Cases up- 20 held the constitutionality of this legislation. In the process of the opinion Justice Miller noted that violation of a treaty was ''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," he continued, "that with all this the 21 judicial courts have nothing to do and can give no redress." Such 19 Act requiring registration: U.S., Statutes at Large, XXII, 115 (1884); Act allowing return only with certificate: U.S., Statutes at Large. XXV, 476 (1886); Act voiding all certificates: U.S., Statutes at Large. XXV, 504 (1888) . 20 112 U.S. 580 (1884) . 21 Ibid.. 598. 76 matters then were political questions. Just as the Court during the pressures of the Civil War had refused to check executive encroachment in the legislative sphere, so now it refused to check a similar tendency to encroach upon the executive sphere on the part of Congress. The most important case to come before the Court challenging the whole concept of legislative authority to undercut American treaty en- 22 gagements was the Chinese Exclusion Case in 1889. Chae Chan Ping was a Chinese laborer who had resided in San Fran cisco from 1875 to 1882 when he left for a visit to China. He took the precaution of obtaining a return certificate prior to his departure. He returned to California in 1888, but was refused readmittance because Congress had in the meantime annulled the right of return of any Chinese once he left the United States. Chae claimed this was, in effect, exclusion of Chinese and therefore contrary to America's treaty obligations to China. Justice Field rendered the decision for the United States Supreme Court. The Court refused to question the wisdom of the legislature's action. The whole matter, said Field, was a political question, and, therefore, notone for judicial determination. "This court," he noted, "is not a censor of the morals of other departments of the government. . 23 . ." Therefore, neither Hr. Chae nor the Chinese government nor any Chae Chan Ping v. U.S. (The Chinese Exclusion Case), 130 U.S. 581 (1889). 23Ibld., 602-603, 609. 77 other party dissatisfied with the exclusion could find redress in the courts. Let them instead "make complaint to the executive head of our government, or resort to any other measure which, in £fcheir7 judgment, £theiij interests or dignity may demand; . . . there lies £their7 only remedy .** ^ When confronted with cases which questioned congressional power in foreign affairs, the Justices thus hesitated to openly challenge the legislators. Rather, they recognized congressional demands for a major say in the setting of foreign policy, and justified this judicially by making it clear that the treaty-making power was always subject to a legislative veto. The Supreme Court's decisions were uncomplicated. The Consti tution, it noted, makes both treaties and congressional acts the law of the land. Neither is favored. Both are expressions of the sovereign 25 will and the latest expression prevails. It provided a good summary 24 Ibid., 606. See also Edye v. Robertson, 112 U.S. 580 (1884), 598. 25 Cases holding that a treaty can be modified or abrogated by a subsequent act of Congress; Mahoney v . U.S., 10 Wall. 62 (1869), 6 8 ; The Cherokee Tobacco, 11 Wall. 616 (1871), 621; Whitney v. Robertson, 124 U.S. 190 (1888), 193-94, 195; The Chinese Exclusion Case, 130 U.S. 581 (1889), 600; Edye v. Robertson, 112 U.S. 580 (1884), 597, 598; Horner v. U.S., 143 U.S. 570 (1891), 578; U.S. v. Old Settlers, 148 U.S. 427 (1892), 468 , 469. Cases holding that a treaty can supersede a prior act of Congress; The Cherokee Tobacco, 621 (dicta) , The Chinese Exclusion Case. 600 (dicta), and U.S. v. Lea Yen Tai, 185 U.S. 213 (1901), 220 (dicta). The only case holding this in point was Cook v. U.S., 288 U.S. 102 (1933). Marshall had earlier put forward this same view in dicta found in U.S. v. Schooner Peggy, 1 Cranch 103 (1801), 109 and Foster v. Neilson, 2 Pet. 253 (1829), 314-15. 78 of its attitude toward this matter in 1888 in the case of Whitney v. 26 Robertson, Justice Field speaking for an unanimous court explained: . . . if there be any conflict between the stipulations of the treaty and the requirements of the law, the latter must prevail. A treaty is primarily a contract be tween two or more independent na tions .... For the infraction of Its provisions a remedy must be sought by the injured party through reclamations upon the other. . . . The courts can afford no redress. Whether the complaining nation has just cause of complaint, or our country was justified in its legis lation, are not matters for judi cial cognizance.^ He continued, "By the Constitution a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land. . . . CtfJ the two are inconsistent, the one last in date will control the 28 other. . . ." Thus Congress, through a subsequent act, may modify or abrogate an earlier treaty, just as a later treaty can modify a prior statute. The later expression of the sovereign will always prevails. But some treaties, noted the Court, do not become a part of the law of the land without supplementary legislation from the Congress. These are the executory treaties. If the legislature does not act, such treaties are of no domestic effect. 29 Other treaties, of course, 26124 U.S. 190 <1888) . 27Ibid., 194. JQ Ibid., 194. ^Edye v. Robertson, 112 U.S, 580 (1884). 79 are self-executing. Justice Fields also noted this distinction In the Whitney v. Robertson case, When the stipulations £of a treat^ are not self-executing they can only be enforced pursuant to legislation to carry them into effect, and such legislation is as much subject to modification and repeal by Congress 30 as legislation upon any other subject. If they are self-executing, however, they require no supplementary legislation, automatically going into effect once the Senate has approved and the executive has ratified them. This distinction of executory and self-executing treaties was a judicially created one. It was important because it gave the Congress a double check on the treaty-making department. The legislators could fail to enact legislation necessary for an executory treaty. Or they could, through subsequent legislation, repeal a prior treaty ending its applicability for domestic purposes. The Court, in a period when Congress was bent upon asserting its authority, trimmed its sails to the prevailing legislative wind. It manufactured doctrines that solved--at least to the legislators' satls- faction--the domestic problem of separation of powers. But, though Congress could abrogate a treaty domestically or could refuse to pass essential supplementary legislation, the treaty's international effectiveness was not altered. The United States was still bound by its terms insofar as the other treaty nation was 30 Whitney v. Robertson, 194. 80 concerned. The Court acknowledged the embarrassment this situation could create in the conduct of diplomacy. Domestically the United States might have no treaty with China, yet internationally our honor required that we live up to commitments once we had agreed to them. However, the Court concluded, this was not a judicial concern. It was a political question, the redress for which must come from the policy 31 making branches. Although it seemed willing to leave all questions of legislation versus treaty to the political process, the Court, nevertheless, retained its own right to review a treaty. In the case of Geofroy v. Riggs. it observed that it had not lost the power to examine a treaty 32 for its constitutionality. Such a statement carried with it an important assertion— that somewhere in back of the deference to politi- cal questions was a line which, if crossed, by a treaty or other agree* ment made that treaty or agreement unconstitutional. In fact, however, the Court has never found a treaty unconstitutional. And it is diffi cult to conceive any commitment to which the political branches would ■^See Edye v. Robertson, op. cit., supra, note 7, 598; The Chinese Exclusion Case, op. cit., supra. note 19, 602; for more contemporary holding to the same effect see Shaughnessy v. Mezei, 345 U.S. 206 (1953), but cf. Carlson v. Landon, 342 U.S. 524 (1952). 32133 U.S. 258 (1890), 267. 81 agree, that would, In the Court's opinion, violate the Constitution. 33 The dicta in Geofroy remains untested. Expediency had been the key factor in judicial reaction to the legislative challenges of the 1880's. The Justices realized they had no practical way to check a legislature bent on asserting itself and indifferent to the international consequences of its domestic action. If the legislature wished to expel or exclude aliens in violation of American treaty engagements, so be it. The Justices would oblige by designating the matter a political one or they would conclude that a treaty needed supplementary legislation to have any effect domestically, or, finally, they would find that a later statute had abrogated United States obligations under a treaty. The most dramatic examples of judicial expediency came at the turn of the century when the Court faced the problems raised by America's new empire acquired as a result of the Spanish-American War. Congress, controlled by legislators of imperialist sentiment, took possession of Puerto Rico and the Philippines, the remnants of Spain's empire. But these same congressmen and senators felt themselves For other statements asserting authority of judicial review of treaties for constitutionality see Geofroy v. Riggs. 133 U.S. 258 (1889), 266-67; Doe v. Braden, p. 657; Prevost v. Greneaux, 19 How. 1 (1856), 197 ; The Cherokee Tobacco, p. 620-21; In re Ross, 140 U.S. 453 (1891); Downes v. Bidwell, 182 U.S. 244 (1901), 294; Missouri v. Holland, 252 U.S. 416 (1920), 422-23; Asakura v. Seattle, 265 U.S. 332 (1924), 341. 82 pressured by domestic politicel considerations to discriminate against products Imported from the new territories. To protect American eco nomic interests Congress in 1900 passed a bill levying a tariff on Puerto Rican goods. In support of this measure the legislators argued that constitutional protections applied to territories only as specifically extended by congressional enactment. In 1901 a series of cases came to the Supreme Court testing the constitutionality of the revenue measures. After a momentary hesi tation the Court overcame its constitutional scruples and in its opinions erected a judicial rationalization for the legislative fait accompli. These cases were, of course, the famous Insular Cases. 34 The first of these contests was that of DeLism v. Bidwell. The issue was the collection of the above mentioned duties on Puerto Rican products. The Court split sharply resulting in a disconcerting proliferation of opinion. A not too homogeneous majority of five Justices held the products not subject to duty under Article I, Section 9 of the Constitution. Dooley v. United States, also decided in 1901, 35 came to the same conclusion. Puerto Rico, said the majority, had ceased to be a foreign country and become a part of the United States. No duties could be collected against her products. In the case of Downes v. Bidwell. decided that same year, the Court upheld a new enactment which imposed duties on Puerto Rican ^182 U.S. I (1901) . 35182 U.S. 222 (1901). 83 36 goods. The shift in the vote of Hr. Justice Brown lay behind the different conclusion. The four Justices, who had dissented in the Dooley case and who now found themselves in the majority due to the shift of Brown, consistently maintained that customs duties could be levied on Puerto Rican goods. In explaining the freedom of such customs legislation from constitutional restraint they distinguished "incorporated1* and "unincorporated" territories. Congress, they noted, was the branch Invested with power to make any incorporation. If it refused to do so the territory was not protected by the full force of the Constitution and was subject to the absolute power of Congress except where "fundamental" rights were involved. The revenue clause of the Constitution was not a fundamental right. Congress' imposition of duties did not, therefore, violate the Constitution. In Downes, the minority of four Justices, also consistent with their stand in the Dooley case, argued that Puerto Rico, once acquired, became an integral part of the nation with full constitutional pro tection. Justice Brown, the swingman in these two suits, had agreed with the majority in Dooley that Puerto Rico was no longer a foreign terri tory. That conclusion had been enough to decide the issue facing the Court in that suit. But now, faced with a congressional enactment in 36182 U.S. 244 (1901); see also Hawaii v. Mankichi, 190 U.S. 197 (1903) ; Dorr v. U.S., 195 U.S. 138 (1904) ; Rassmussen v. U.S., 197 U.S. 516 (1905) ; Balsac v. Puerto Rico, 258 U.S. 298 (1922) . All those cases after Downes accepted the doctrine of incorporation and the distinction between fundamental and non-fundamental rights. 84 1901 which specifically imposed duties on Puerto Rican goods, he joined the former dissenters. Apparently Justice Brown believed that consti tutional provisions for protection from duties did not extend to Puerto Rico in the face of a clear congressional intent that they should not apply. The Court, it should be noted, made a major concession to the legislature in the Downes case. It held that, although the executive might hold and administer a territory, only the legislature could incorporate it and thereby extend to the inhabitants the full protection of the United States Constitution. The Court had refused to interfere in the matter of Chinese ex clusion. The political current was running too strongly for it to make any meaningful check on the legislature. If Congress was desirous of overriding America's treaty obligations, the Justices would not stop it. In fact they would lend it a helping hand by producing a series of legal rationalizations for Congress1 actions. Similarly, the Supreme Court held out only temporarily against the current of imperialism. In light of the abrupt about face in the Insular Cases one might well observe along with Mr. Dooley, that esteemed critic of the American scene, that "th' Supreme Court follows th* illiction returns." The consequences of the Court's reaction to legislative inter vention between the Civil and Spanish American wars was to emphasize domestic at the expense of foreign affairs, and to magnify legislative at the expense of presidential power. These attitudes were unique in 85 the Court's approach to foreign policy. Expediency, cloaked in a separation of powers explanation, was the basis of the Court's unusual s tance. CHAPTER V REVIVAL OF THE RECOGNITION QUESTION IN THE TWENTIETH CENTURY By 1900 the essentially donestic outlook that had preoccupied the Americans since the first quarter of the 19th century gave way to new international involvement. The closing of the American frontier, the presence of internal discontent, a growing industrial and econonic maturity all encouraged the United States to look abroad. Its empire was but one manifestation of this new concern. Among the other problems was the renewal of the question of recognition. This, however, in the twentieth century was cast in a new form. Up to the Civil War the United States had been concerned--except in the case of the French Republic--almost exclusively with the emergence of former colonies as new states. The policy makers weighed the emancipated colony's chances of survival. If it gave evidences that it was sufficiently robust to hold its own in the world, the United States extended recognition. After the Civil War, however, the concern was not with new states but with new governments in old, already recognized states. New considerations therefore began to influence American policy. Subjectivity began to replace what had formerly been 86 a more or less objective decision. Mexico, Russia and China were to 1 become the best examples of the new problems involved. Two trends emerged from American recognition as it was practiced down to the twentieth century. One was the domination of the president in setting the policy. The second was the acceptance of de facto con trol as the primary criterion for extending recognition. From the time of Washington, the President held the initiative. As noted previously, legislative challenges during the time of Clay had not been serious enough to dislodge the presidential hold. Secretary of State Seward ignored a resolution passed by the House in 1864 disap proving of Maximilian's government in Mexico and asserting congressional right to an authoritative voice in foreign affairs. When in the late nineteenth century the Cuban struggle for independence became an emotional issue, Congress again attempted to acquire a greater voice in determining the direction of American policy. It threatened the passage of a resolution recognizing Cuban independence in 1896. The reaction of Secretary of State Olney for the executive branch was an unequivocal rejection of any legislative authority to encroach on presidential prerogative. Though continued congressional agitation certainly influenced executive attitudes, it was the President who 2 finally determined when the United States would recognize Cuba. ^Louis L. Jaffe, Judicial Aspects of Foreign Relations in particular of the Recognition of Foreign Powers (Cambridge, 1933), 140. 2 Quincy Wright, The Control of American Foreign Policy (New York, 1922), 268-271. 88 The second significant development in the nineteenth century was the acceptance by the great majority of American chief executives and their secretaries of state of de facto control and a willingness to 3 live up to international obligations as touchstones for recognition. These had the advantage, for example, of offering a relatively ob jective criterion which rather nicely solved the problem raised by the revolt of the Spanish colonies. Once the revolutionaries had driven Spain out and restored some kind of order to the new state, the President of the United States could extend recognition. The right of revolution, as Jefferson had noted, was in the American tradition. "We surely cannot deny to any nation," he wrote, "that right whereon our own Government is founded--that everyone may govern itself accord ing to whatever form it pleases, and change these forms at its own will. . . The will of the nation is the one thing essential to be 4 regarded." John Quincy Adams was even more direct in affirming the right to revolution and the duty of the United States toward the new state: "There is," he wrote, "a stage in such contests when the parties struggling for independence have, as 1 conceive, a right to 5 demand its acknowledgment by neutral parties." This right to demand recognition apparently existed once the re volt had erected a stable replacement for the overthrown government. ^See generally, Taylor Cole, The Recognition Policy of the United States since 1901 (Baton Rouge, 1928). 4 Ford, ed,, Jefferson, VI, 199. Quoted in Moore, Digest, I, 78-79. 89 Of course, America's own traditions meant that she was concerned that the government have popular support. But the United States did not con* sider this as the key factor in its decision. Often "the will of the 6 nation" as expressed in apathy or acquiescence was enough. And in Latin America where, following the wars of independence, stability was at a premium, popular support counted for less than the ability to govern. President Pierce in a message in 1856 expressed the continued devotion to de facto control as the criterion for American recognition. He said, He do not go behind the fact of a foreign Government exercising ac tual power, to investigate the question of legitimacy; we do not inquire into the causes which j lead to a change of governments. In 1862 Secretary of State Seward broke, temporarily, with this policy. To Seward, the United States should be satisfied with nothing 8 less than a constitutionally established government. Peru in 1866 had undergone a coup making one Colonel Prado the dictator of that nation. Rejecting governmental changes brought about by revolution, Seward opposed recognition "until the people have adopted fthe revo lution/ by organic law with the solemnities which would seem sufficient £ Cole, Recognition Policy. 25-26, 34. 7 Quoted in Cole, Recognition Policy, 25. fi U.S., Diplomatic Correspondence, 1862, II, 863. See also John L . McMahon, Recent Changes in the Recognition Policy of the United States (Washington, 1933), 21. Seward also applied his policy to Vene zuela, see his message to U.S. minister Culver, Nov. 19, 1862 in Moore, Digest, I, 149. 90 9 to guarantee their stability and permanency*" Seward reaffirmed this view in 1868. When a Republican form of govern* ment is constitutionally estab lished, we hasten to recognize the administration and to extend it a cordial friendship. ® The key word in his statement was "constitutional." Seward's successors did not, however, follow this flirtation with constitutionality or legality as a prerequisite for recognition. The government reverted to If the provisional government is effectively administering govern ment of the nation and in position to fulfil international obligations, you will enter into de facto rela tions .*•* During this period the Court reaffirmed the position set down by Marshall in the first two decades of the century. The recognition of independent states or governments depended upon the political depart ment. The case of Kennett v. Chambers which came before the Court in 12 1852, raised the question of Texas' independence. In regard to this matter the Court concluded, 9 U.S., Diplomatic Correspondence, 1866, II, 617. 10 Ibid. 11 Quoted Moore, Digest, I, 153. 1214 Howard 38 (1852) . 91 It is a sufficient answer . . . to say that the question of whether Texas had or had not at that tine become an independent state, was a question for that department of our government exclusively which is charged with our foreign relations. * * * And if we undertook to inquire whether she had not in fact become an Independent sovereign state before she was recognized as such by the treaty-making power we should take upon ourselves the exercise of poli tical authority, for which a judi cial tribunal is wholly unfit, and which the constitution has conferred exclusively upon another department. Similarly, in the case of Jones v. United States, decided in 1890, the Court refused to look beyond the policy decision of the political 14 departments. "Who is the sovereign de jure or de facto of a terri tory" wrote Justice Gray, "is not a judicial, but a political question, the determination of which by the legislative and executive depart ments of any government conclusively binds the judges. . . One more exanq>le suffices to show the repeated refusal of the Justices to intervene either to pass on the propriety of executive action under the separation of powers or to examine the policy which lay behind the presidential extension of recognition. The case of Underhill v. Hernandez came before the Court in 1892.*^ It concerned a 13Ibid., 50-51. 14137 U.S. 202 (1890). 15Ibid., 212. 16168 U.S. 250 (1897). suit by an American citizen against Venezuelan General Hernandez who had denied the plaintiff his passport which he had requested in order to leave the country. Shortly after the incident the United States recognized the government for whom Hernandez had acted as military commander. The Court inquired no further than to take judicial notice of the Department of State's information indicating recognition had in fact been extended. To go further, the Court noted, would be idle. Wilson's election brought with it inqportant changes in American diplomacy. But it saw a continuation of congressional pressure for a larger voice in fixing recognition policy. The 1912 revolution in China raised this matter. Congress sought to act by joint resolution in January, 1913 to "recognize" the new republican regime. Wilson protested this legislative usurpation and not until May of that year did he extend recognition to the new Chinese government.^ In 1919 the Senate demonstrating a continued determination to dictate policy, acted to withdraw recognition from the incumbent gov ernment in Mexico. In return it received a stern lecture from Presi dent Wilson who reaffirmed his insistence that Congress lacked any authority to direct recognition policy. *^For congressional action see, Hackworth, Digest, I, 162-64. Wilson's subsequent recognition see, Hackworth, Digest, I, 316. 18 U.S. Congressional Record, 66th Cong., 2nd Sess., 1919, LIX, Pt. 1, 73. Wilson protested this action as an "encroachment", see Hackworth, Digest. I, 164-165. 93 Wilson contributed a new note to American recognition policy- self-righteous moralism. Relations with Mexico for the next five years were those most colored by this particular aspect of the President's diplomacy. Conditions in that country after 1913 were at best confused. The legal president had been murdered under circumstances which pointed to one of his generals as his murderer. That same general, Huerta, now occupied the presidential palace. He in turn faced three revolutionary movements which aimed at toppling him and restoring "constitutionalism^1 to Mexico. In the face of these conditions and what he considered the illegality of Huerta's accession, Wilson refused him recognition. Huerta's suspected complicity in the murder of Mexico's president took him beyond the pale of legitimacy. His regime offended Wilson's moralistic attitudes. Until the Mexicans learned the constitutional way of doing things, the President would withhold recognition. This policy rejected de facto control as the basis for recognition and the case of Mexico set the precedent for the treatment of the rest of Latin 19 America. In the western hemisphere self-determination, if it was to gain United States approval, could be expressed only through estab- 20 lished constitutional channels. 19 McMahon, Recent Changes. 40-56 and 128. 20Wilson's requirement of constitutionality as a prerequisite for recognition was also illustrated in the case of Costa Rica, McMahon, Recent Changes. 128; Nicaragua and the Dominican Republic, Percy E. Corbett, Law in Diplomacy (Princeton, 1959), 75. 94 This demand for legality did not extend outside the Western Hemisphere however. It was, in reality, a reflection of United States 21 hegemony in the area. North Americans could get away with treating Caribbean republics as client states. But such demands could not be made of more independent nations. So in the case of China no one suggested the test of constitutionality. When the Executive recognized the new Chinese government he spelled out criteria which amounted to nothing more than those of Thomas Jefferson: actual territorial con trol, popular acquiescence and a willingness to meet international ob ligations . Wilson's refusal to recognize the Huerta or Carranza government in Mexico raised problems for the Supreme Court. It easily deferred to the policy, itself--this was a political question--but it found more difficult the controversies set off by Mexican decrees and legis lation passed during the period of non-recognition. Could these domestic acts be considered in cases coming before American courts? In 1917 the Court reviewed PetJen v. Central Leather Co. and Ricaud v. 22 American Metal Co. in which it answered this question. In both cases the circumstances attendant upon the Mexican Revolution were important. 21 Jaffe, Judicial Aspects. 145-146; John B. Moore, "The New Iso lation," Am. Jour. Int'l Law, XXVII (1933), 607, at 610. Oet.len v. Central Leather Company, 246 U.S. 297 (1917) ; Ricaud v. American Metal Co., 246 U.S. 304 (1917). See also Whitman, Digest. II, 608ff. 95 The Carranza government, which had defeated Huerta and which was now fighting off challenges from Villa and Zapata, pressed by the necessities of her civil war, levied military contributions, condemned property throughout Mexico and sold it to raise revenue. Such actions were taken in 1914 and were at that time of no legal effect insofar as the courts of the United States were concerned for the government had not received American recognition. Then in 1915 the United States extended de facto recognition to the Carranza regime and in 1917 recog nized it as the de jure government of Mexico. In cases coming before the Court that year, the Justices found that recognition acted to validate the earlier decrees of the Mexican government. The United States courts could not sit in judgment of acts done by other recog nized sovereigns. The Supreme Court thus dutifully followed the lead of the politi cal departments. In so doing, it replaced one kind of judicial defer ence— the view that no Mexican government capable of passing valid acts existed--with another--that acts of a recognized government can be questioned only by the political departments and must otherwise be accepted by the courts. With the return of the Republican party to the White House, Wil sonian morality went out of style. But Latin American governments still had no easy time winning recognition. A new Mexican government, in de facto control of the state, waited two years for Washington's recognition. A similar fate awaited revolutionary governments estab lished in Honduras in 1924, Ecuador in 1925, and Nicaragua in 1926. 96 Where Wilson had Insisted upon de facto control and constitutionality, demonstrated by an expression of the popular will, Harding and Coolidge demanded stability coupled with a willingness to fulfill international 23 obligations--especially those due the United States. It was the case of the Soviet Union which provided the most severe test of American policy. Here, policy makers followed a pro gram similar in its theory and consequences to Wilsonian constitution ality. The United States had recognized the Provisional Government as the legitimate ruler in Russia in March, 1917. The Soviets— though by 1920 they had overthrown this regime and were clearly in control of Russia--were denied recognition. Aster leans were concerned about the protection of persons and property within Russia, the revolutionary ideology of the new government, and the cancellation of obligations to foreign states. Even when the Soviets tendered assurances that they would live up to their international responsibilities, Asierlcan policy makers in the 1920's rejected these offers. The motivation be hind United States policy was a deep distrust of and distaste for 24 Soviet principles both at home and abroad. The Hoover Administration drew even closer to Wilson's consti tutionalism over the matter of Manchukuo. In notes sent to the Japanese 23 Hackworth, Digest, I, 334-338; II, 207-208. 24 See Cole, Recognition Policy, 88. American distrust of Russia because of the "enemy** and revolutionary character of her regime be came more and more important in shaping her policy toward the Soviets even after they had clearly established de facto control over Russia. See McMahon, Recent Changes, 129 and Jaffe, Judicial Aspects, 117. 97 and Chinese governments on January 7, 1932, President Hoover enunciated the American policy of non-recognition of the Japanese puppet state established in Manchuria by force of arms. This stance was unrelated to de facto control--which the Manchukuo regime clearly had estab lished— or to any willingness to meet international commitments. In stead, the United States' policy reflected a disapproval of the means by which the new "state" had been born. Hoover and his Secretary of State, Stlmson, denied it recognition on the grounds that it violated Chinese territorial integrity which, under the open door policy, and the Washington treaties, the United States was committed to uphold. 25 A Democratic victory in 1932 brought with it changes in recog nition policy. Roosevelt adopted Hoover's attitudes toward Manchukuo— although he did attempt to inprove deteriorated Japanese-American relations— but he turned his back on the policy which the nation had 26 pursued for the past fifteen years toward the Soviet Union. Here he was willing to scrap constitutionalism. On November 16, 1933, through an executive agreement, he formally recognized the Soviets as the legal government of Russia. By Jefferson's old criteria it was about time the United States followed the lead of all the other world powers and extended formal recognition to the Soviet government. Having agreed to a settlement of some of the 25 Stephen Chao Ying Pan, American Diplomacy Concerning Manchuria (Boston, 1938), c. X, 293ff. See also Henry L. Stlmson, The Far Eastern Crisis (New York, 1936), 93-94. On Roosevelt's Manchukuo policy see Pan, American Diplomacy. 319-338. 98 outstanding problems concerning trade, world revolution, and Americans1 rights in Russia, President Roosevelt and Soviet Commisar for Foreign Affairs Litvinov formalized the accord through a series of letters, 27 memoranda and a gentlemen's agreement. The United States' extended refusal prior to 1933 to recognize the Soviet Government and its continued acceptance of the Provisional Government as the legitimate Russian representative put the Court in a difficult position, one which the invocation of the political questions doctrine did not fully solve. How was the Court to view the Soviet regime? Was it under a duty to ignore it wholly or should it take account of it in some matters and Ignore it in others? The Russian question once more brought before the Court the whole matter of recognition and non-recognition. Actually there were few problems if the United States had recog nized a government. The Court could proceed assured that for both judicial and political purposes the government did exist. A finding by the Justices to this effect committed the government to nothing new. The political departments had already established the official American recognition policy. But there was a second possibility, either that the policy makers had done nothing--expressed no attitude toward the government-- or, on certain policy grounds, had refused to acknowledge the existence 27 McMahon, Recent Changes. 56-116; Jaffe, Judicial Aspects, 146- 147; McClure, International Executive Agreements, 140, 142. 99 of a government even though it was able to control its territory and willing to assume its international obligations. This was the case of Soviet Russia. Were the courts constrained to follow the political departments if they used recognition as a bludgeon? The most troublesome problem was sovereign immunity, that is, the privilege of any nation to avoid process in the forums of any other nation. Automatic judicial denial of immunity to all unrecognised governments could trigger anything from official anger to International retaliation. Refusal to extend immunity to agents of a foreign state could involve the Court in the very political thicket it hoped to avoid. The Court would embarrass rather than assist the political departments. On the other hand a judicial concession of sovereign immunity to a de facto but unrecognised state openly made the Justices policy makers in the matter of recognition--a position which the Court clearly sought 28 to avoid. Almost as difficult--and frought with potential embarrassment-* was the matter of an unrecognized government as party-plaintiff in 29 American courts. Should foreign governments not acknowledged by the 28 In The Pesaro, 271 U.S. 562 (19 26), the Court granted an immunity to a foreign vessel even though the Secretary of State did not consider it entitled to an immunity and made his attitude known to the courts. Here, the judiciary compromised an established position of the policy makers. This instance of judicial policy making is the notable (and unwarranted) exception to the general rule of immunity only in cases of recognition. See Jaffe, Judicial Aspects, 53. ^Clearly under the ruling in The Sapphire, 11 Wall. 164 (1870), 167 foreign governments could maintain suits in U.S. courts, but this was conditional upon prior recognition. Nor was there any question of the right of a private citizen of an unrecognized government to maintain suit in his individual capacity. Russian Volunteer Fleet v. U.S., 282 U.S. 481 (1931) , 492. 100 political departments have access to domestic courts in suits brought to assert their legitimate claims or rights? In both the above situations the Court faced a dilemma. On the one hand unrecognized but de facto states, such as Soviet Russia, were capable of acts which the Justices could not easily ignore. On the other hand, the precedent of the political questions doctrine which presumably was applicable warned against even limited judicial meddling in recognition policy. TWO New York State cases sought a way out of 30 the dilemma. In one case the Soviets had nationalized the assets of a branch bank in Petrograd. The bank sought to impose this act of state as a defense against a suit for recovery of funds deposited with it prior to nationalization. The judges agreed that this action even by a govern ment unrecognized by the United States did excuse payment. In the other matter, the plaintiff brought suit to recover furs confiscated by the Soviet government. The Court refused to order restitution. It concluded it was Inappropriate to question acts done by another gov ernment within its own territory in the exercise of its sovereignty. This was true whether the United States had extended recognition or not. In both suits, the Court concluded that the de facto government of Russia was entitled to sovereign immunity even in the absence of 30 Sokoloff v. National City Bank, 199 N.Y. Supp. 355 (1922), and Wolfsohn v. R.S.F.S .R., 234 N.Y. 372 (1923). But cf Russian Socialist Federated Soviet Republic v. Cibrario. 191 N.Y. Supp. 543 (1921), at 549 and 550. 101 recognition by the political departments of the United States. Noted 31 one judge, "facts are facts, in Russia as elsewhere." To bring a foreign government before the bar without its prior consent might "vex 32 the peace of nations." The courts denied that recognition was a pre requisite of sovereign immunity. They could therefore extend imsunity 33 to a sovereign and still avoid intervention in recognition policy. Other lower courts distinguished cases denying sovereign immunity from matters in which the unrecognized nation sought to enter American courts as a plaintiff. Denial of the privilege of access to the forums of the United States, concluded the judges, would not create the ill will engendered by summoning an unwilling sovereign before the bench. As a result, unrecognized states were refused the privilege of 34 Initiating suits in American courts. The United States Supreme Court was apparently more at home with the notion of absolute judicial deference than with the relatively more sophisticated--but difficult--approach the New York courts had adopted. It exercised caution not to compromise the executive arm, but did not note the potential embarrassment that might result from a denial of immunity to an unrecognized sovereign, or the difficulties that could come from closing its forums to legitimate suits by such governments. 31 Sokoloff v. National City Bank. 359. 32 Wol f sohn v. R.S .F.S .R., 376. 33 Hervey, The Legal Effects. 130-31. 34 The Maret, 145 F 2nd 431 (3rd Cir.), 442. See also Whiteman, Digest, II, 639 for collection of non-access cases. 102 Its opinions in the 30's and early 401s did provide for judicial in quiry into cases where the foreign sovereign's claim of immunity had not been officially recognized by the Department of State, but the facts in the few cases of this kind that came before the Supreme Court indi cated that the sovereign was a friendly foreign state to whom the United States had extended recognition. In no instance did it have occasion to go as far as the New York courts in allowing the judiciary 35 to grant immunity when the policy makers had not extended recognition. Two cases of lasting importance arose from the Litvinov Assign ment. In these the Court made explicit what had long been implicit in its decisions; the executive alone set the recognition policy of the United States. The first of these cases was that of United States v. Belmont. 36 decided in 1937. In 1936 the United States government brought suit against August Belmont's executors to recover money deposited by a Russian corporation with Belmont prior to 1918. Belmont, at that time, was doing business as a private banker. The Soviet government claimed these funds as successor to the Russian corporation which it had nationalized. By the Litvinov Assignment of 1933, the Soviets Guaranty Trust Co. v. U.S.. 304 U.S. 126 (1937), 137ff; Compania Espanola de Navegacion v. Navemar, 303 U.S. 68 (1938) ; Ex parte Peru. 318 U.S. 578 (1943), 587. 36 U.S. v. Belmont, 301 U.S. 324 (1937). 103 transferred this claim to the government of the United States, which brought suit to acquire the funds. The United States' claim depended upon the validity of the Sov iets' claim. And the Soviets' claim was good only insofar as the American courts recognized the sufficiency of the Soviet nationalization decree. But foreign decrees could be valid only if the United States had recognized the government Issuing them. And, therefore, it was important to determine the legality of President Roosevelt's executive agreement extending recognition to the USSR. The Court concluded that such an agreement was unquestionably within the competence of the President. "The executive," it noted, 37 "had authority to speak as the sole organ of the government." He need not enter into a treaty to accoiqtlish his ends. In agreements relating to recognition, executive power was complete. Henceforth, when the Court said it deferred to the policy makers, it was, in fact, 38 yielding to the President. Five years later in United States v. Pink, the Court accepted 39 the conclusion of Justice Sutherland in the Belmont case. Justice Douglas in the course of his opinion observed, It was the judgment of the political department that full recognition of 37Ibid., 330. 38 See McMahon, Recent Changes, 8 , 521; Dickinson, 22 Mich. L. Rev. 29, 38; Hackworth, Digest, I, 161. 39 315 U.S. 203 (1942) . 104 the Soviet Government required the settlement of all outstanding prob lems Including the claims of our nationals. Recognition and the Litvinov Assignment were interdepen dent. We would usurp the executive function if we held that that deci sion was not final and conclusive in the courts.^0 Following the Litvinov Agreement of 1933, recognition did not again become an important issue until the Communist victory in China. Then emotionalism combined with moralism once again became the hall- 41 mark of American non-recognition. In these circumstances, Secretary of State Acheson, as early as July 1, 1949, felt compelled to assure the Senate that it would be consulted before the United States extended any recognition to the peoples' Republic of China. On August 24th he again promised the closest consultation with congressional committees regarding this 42 matter. In 1957, Secretary Dulles noted the need for legality if the Chinese regime was to win recognition. "There are some," he said, 40Ibid., 230. 41 See Gabrial A. Almond, The American People and Foreign Policy (New York, 1950), 85; Tang Tsou, America's Failure in China 1941-50 (Chicago, 1963), c. XII. 42Whi teman, Digest. II, 94. U.S. Congress, Senate Committee on Foreign Relations, Hearings on the Nomination of Philip C. Jessup to be United States Representative to the Sixth General Assembly of the United Nations, 82nd Cong., 1st Sess., (1951), 659, 932, and the following extended testimony and statements: 616ff., 713ff., 799ff., 836ff., 856.,; see also U.S. Congressional Record, 81st Cong., 1st Sess., 1949, VC, 8294 for earlier debate on this issue. 105 “who say that we should accord diplomatic recognition to the Cosmunist regime because It has now been in power so long that it has won the right to that. That is not sound international law. Diplomatic recog nition is always a privilege, never a right." The ability to govern, he continued, "is by no means a controlling factor." So long as the Communists "retain power not by the will of the Chinese people but by massive, forcible repression" they could not receive the benefits of 43 American recognition. Though it was clear that the president alone retained the authority to grant or refuse recognition, the Congress had, in this instance, received such executive assurances, that it would be diffi- 44 cult for him to act without congressional cooperation. In this matter the executive, yielding to domestic political considerations, had promised away one of his major diplomatic tools. He had, as a con sequence of his commitments to the legislators, substantially limited the foreign policy options available to him in dealing with China. In all the suits in the twentieth century raising questions regarding recognition, the Court failed to act as an effective check 43 Department of State Bulletin, vol. 36, (April 1, 1957) 531-32. See Frankfurter's opinion in National City Bank v. Rep, of China. 348 U.S. 356 (1955), 358, and William W. Bishop, "The Structure of Federal Power over Foreign Affairs," Minn. Law Review, XXXVI (19 5 2), 299, at 302. 106 upon the policy making departments. Any limitation on executive power must, as was noted in the case of Red China, come from political rather than judicial considerations. The Court's explanation of its behavior— that is, its deference to the recognition policy of the political (read executive) depart ment— remained about the same. Essentially, it turned upon the sepa ration of powers concept; the Constitution excluded the judiciary from 45 certain areas--one of which was recognition. But in addition to this explanation the Court noted other factors which influenced its decisions. It point to the potential embarrassment that a half-informed Court could cause an executive in a 46 1901 case, Neely v. Henkel. It expressed concern over the possibility of imperiling amicable relations in Oetjen v. Central Leather Co. in 47 1917. In the case of National City Bank v. China, decided in 1955, it claimed that, dependent as it was on the judicial method, it lacked 48 the competency to handle recognition problems. These were better left to negotiation and compromise--techniques not in the judicial arsenal. All of which amounted to a judicial admission that the whole 45 See for example U .S. v. Pink, 229. But cf., Stone's dissent therein at 250. 46 Neely v. Henkel, 124-125; National City Bank v. China, 348 U.S. 356 (1955), 361; Jaffe, Judicial Aspects, 53. 47 Oetjen v . Central Leather Co., 340. 48 National City Bank v. China, 358; Dickinson, 22 Mich. L. Rev. 37. 107 area of foreign affairs demanded a flexibility not possible for a court. Certainly, the complications of diplomacy and the growing complexities of the twentieth century gave the Justices good reason to take note of their limitations as actors in American foreign policy. The legal-analytical approach appeared to offer little in the course contemporary foreign affairs were taking. CHAPTER VI POWERS, INHERENT AND PLENARY In 1919 George Sutherland, former United States Senator from Utah and future Associate Justice wrote a book in which, drawing upon earlier ideas set forth in an article in 1910, he discussed the relation of the American Constitution to foreign affairs.^ In it he distinguished internal and external authority. The government, he wrote, derived the former from the Constitution, while the latter had an extraconstitutional source. External power was inherent in every 2 sovereign. 3 This view was not entirely novel. Its lineage ran back as far 4 as the Legal Tender Cases decided in 1870. In these suits Justice Bradley had indicated that the notion of inherent powers was not an unheard of conception: It seems to be a self-evident pro position that /'the general government^ George Sutherland, Constitutional Power and World Affairs (New York, 1919). For Sutherland's earlier expression of this same attitude see Sen. Doc. No. 417, Senate Documents, Vol. 59, 61st Cong., 2nd Sess. (1910) . 2 Sutherland, Constitutional Power and World Affairs 9. To the same effect see Edward S. Corwin, The President: Office and Powers (rev. ed., New York, 1948), 209-210. 3 C. Perry Patterson, "In re The United States v. The Curtiss- Wright Corporation," Texas Law Review, XXII (1944), 286, 445; Breck McAllister, "The Influence of Supreme Court Decisions on the Conduct of American Foreign Affairs," Institute of World Affairs Proceedings (Los Angeles, 1937), 158-59. 412 Wall. 457 (1870) . x08 109 is invested with all those inherent and implied powers which, at the time of adopting the Con stitution, were generally consid ered to belong to every government as such, and as being essential to the exercise of its functions. The 1883 opinion in United States v. Jones recognized authority which had no basis— express or implied— in the Constitution but was an "incident of sovereignty" which "belongs to every independent govern- 6 ment." One year later Justice Miller in the Neagle case affirmed that there were powers in the President that could only be described as 7 inherent. The executive branch also embraced these views. President Theodore Roosevelt believed "an inherent power rested in the nation, outside of the enumerated powers conferred upon it by the constitution, in all cases where the object involved was beyond the power of the several States and was a power ordinarily exercised by sovereign 8 nations." Appointed to the United States Supreme Court in 1922, George Sutherland waited fourteen years for the opportunity to write his theory of internal and external powers into law. The vehicle finally Ibid., 556. But see Ex parte Merryman, 17 Fed. Cas. 144 (1861), 149; Kansas v. Colorado, 206 U.S. 46 (1907), 89-90; and U.S. v. Butler, 297 U.S. 1 (1936), 63 where the Court expressly rejected the doctrine of inherent powers. 6109 U.S. 513 (1883), 518. ^ln re Neagle. 135 U.S. 1 (1889). See W. W. Willoughby, The Constitutional Law of the United States, Vol. II (New York, 1910), 1152ff. Q Quoted in Patterson, "In re Curtiss-Wright," Texas Law Review, XXII, 286, at 294. 110 9 cane In the form of the Curtiss-Wright case. That case, one of the most significant in the area of foreign affairs, bears careful exam ination . In May 1934 by joint resolution the Congress of the United States gave the President discretionary authority to prohibit the sale of arms to Bolivia and Paraguay, contestants in the Chaco War then raging in South America. That same year President Roosevelt concluded that it was in the interest of peace to stop such arms shipments and issued a proclamation to this effect. Curtiss-Wright Export Corporation continued, after the date of the proclamation, to conspire to sell arms to Bolivia and in 1936 was indicted for this conspiracy. The corporation in its defense challenged the validity of the delegation of legislative power to the executive. Mr. Justice Sutherland, for the Court's majority, delivered an opinion, the key to which was his previously made "fundamental" distinction between external and internal powers. The consequence of the congres sional resolution and the presidential proclamation, noted Sutherland, was "to affect a situation entirely external to the United States. . 10 . ." From this he launched into a lengthy examination of American 11 constitutional history. 9 United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) . 10Ibid., 315. ^For a discussion of the validity of Mr. Justice Sutherland's history and for an historical sketch on this subject see, Patterson, "In re . . . CurtiBS-Wright," Texas Law Review, XXII, 286, 286-297 refuting Sutherland's historical analysis 297-308 and 445-462. For Ill Upon the American colonies1 declaration of Independence from England the powers of external sovereignty passed directly from the Crown to “the colonies in their collective and corporate capacity as 12 the United States of America." Therefore, wrote Sutherland, "it results that the investment of the federal government with the powers of external sovereignty" antedated the Constitution and "did not depend upon the affirmative grants of the Constitution." For even "if they had never been mentioned in the Constitution, CthtyJ would have been vested in the federal government as necessary concomitants 13 of nationality." So, foreign affairs power is extraconstitutional. Sutherland never reconciled these statements with other language in his opinion. At one point he concluded that executive power "must be exercised in subordination to the applicable provisions of the 14 Constitution." How extraconstitutional powers could be measured by a constitutional standard, he failed to explain. The opinion continued with a consideration of the locus of these powers of external sovereignty. Where was it lodged by the system of a separation of powers? In the President, answered Suther land. "In the vast external realm. . .fiit] alone has the power to other challenges to Sutherland's dictum see David M. Levitan, "Recent Developments," 58ff* Anticipating Sutherland's historical analysis by one hundred forty years was the opinion in Penhallow v. Doane. 3 Dallas 54 (1795). *^U.S. v. Curtiss-Wright, 316. 13Ibid., 318. 14 Ibid. See Elbert M. Byrd, Jr., Treaties and Executive Agree ments in the United States (The Hague, 1960), 92. 112 speak or listen as a representative of the nation.*' And his authority Is not dependent on delegation from the legislature— it is "plenary 15 and exclusive." All of these fine words were, however, obiter dicta. And the case decided far less than Sutherland's essay on internal versus ex ternal powers would seem to indicate. In fact, the Court concluded that the delegation was not an invalid one; that in foreign affairs they should always be slow to find legislative delegation unconstitu tional . President Roosevelt's proclamation pursuant to the authority of the Joint resolution was valid, and Curtiss-Wright could— under the proclamation— be held responsible for any sale of arms to Bolivia. But the narrow holding was overshadowed by the sweeping language of the dicta. If taken at his word, Justice Sutherland was saying the government, that is the President, possessed "a secret reservoir of unaccountable power" in diplomatic affairs, the limits to which 16 were undetersdned. Roosevelt and all future presidents apparently could set the course of the nation's foreign policy without the legal necessity of consulting the legislature. Nor could the Court serve as a break on executive decision in such matters. Reading Curtiss-Wright broadly, the President of the United States was the absolute master of foreign affairs. 15 U.S. v. Curtiss-Wright, 319. 16 Levitan, "The Foreign Relations Power," Yale Law Journal, LV (1946), 467, 493. 113 In 1937 on the heels of the Curtiss-Wright decision cane the case of United States v* Belmont, In which the Court considered the legal consequences of Roosevelt's executive agreement recognizing Soviet Russia.Once more Justice Sutherland wrote the opinion. And once more he turned the decision into a brief lecture on external and in ternal powers. "Governmental power over external affairs is not dis tributed, but is vested exclusively in the national government. And in respect to £thittf the Executive has authority to speak as the sole organ of that government," without the advice and consent of the Senate.18 The significance of the Curtiss-Wright and Belmont cases does not lie in the narrow holdings. Rather they are important because they laid the basis for future acceptance of the doctrines of inherent and plenary powers in foreign affairs residing in the person of the Chief Executive. By 1948 the Court's majority would be citing Sutherland's opinion in Curtiss-Wright, apparently no longer concerned that the 19 mass of that opinion had been obiter dicta. The case of Chicago and Southern Airlines v. Waterman S.S. Corpo ration decided that year illustrated the broad application of 17301 U.S. 324 (1937) . 18Ibid.. 330. 18See for example U.S. v. pink, 315 U.S. 203 (1942), 229; or Hirota v. Mac Arthur, 338 U.S. 197 (1948), 208. Also the opinion of Attorney General Jackson regarding the Hull Lothian Agreement. presidential prerogative. The dispute centered about the issuance of a certificate for international commerce which the Civil Aeronautics Board had granted and which the President approved after the Board had made certain changes in it. The Court, dividing five-four, refused to review the executive decision. The matter involved foreign affairs and therefore belonged in the domain of political power, said Justice Jackson.^ Justice Douglas in his dissent maintained that parts of the executive decision not crucial to American foreign policy could be reviewed. He made clear the sweep of the majority view. To go along with the opinion of Justice Jackson meant judicial withdrawal from all cases--even essentially domestic ones--touching executive decisions regarding foreign policy. No matter how extreme presidential action might be, Douglas concluded, "the courts are powerless to correct it 22 under today’s decision." Inherent powers, of course, can not be the subject of judicial review, although Mr. Justice Sutherland had with little success tried to show that they were. This meant the judiciary--so long as it accepted this concept--could have no role in external affairs. This wholesale deference now combined with a tendency toward greater 20333 U.S. 103 (1948) . 21 115 centralization of government and magnification of the executive's role. The Court, conscious of the dangers of executive embarrassment and re spectful of the President's confidential sources of information, retired more and more. 2 3 What checks were left? This question haunted those who cherished the idea of separation of powers. If the Court had no basis for limiting the exercise of external authority by an all powerful Presi dent and if the legislature seemed inherently incapable of counterbal ancing executive control, then apparently foreign affairs were a field set apart and without any of the usual checks or balances upon it. History would seem to say this was precisely the case. Critics spilled much ink showing how limited the scope of the actual holding in Curtiss-Wright had been and trying to prove that Justice Sutherland's words were of no consequence. In fact, Sutherland's dicta carried the 24 day overriding the warnings of the more cautious commentators. But if the constitutional check had vanished the President was still not untrammeled in fact. Domestic political considerations 23U.S. v. Curtiss-Wright. 320; Patterson, "In re . . . Curtiss- Wright," Texas Law Review. XXII, 286, 445, 462; Thomas J. Meunier, "Executive Supremacy in Foreign Relations," Loyola Law Rev., IV (1948), 156, at 165; Quincy Wright, "The Control of American Foreign Relations," Am. Pol. Sc. Rev.. XV (1921), 1, at 21. 2^Byrd, Treaties and Executive Agreements. 94, 97; Levitan, "The Foreign Relations Power," Yale L.J.. LV, 467; James Quarles, "The Federal Government: as to Foreign Affairs, Are its Powers Inherent as Distinguished from Delegated?" Georgetown L.J., XXXII, (1944), 375. For support of Sutherland's thesis see note 2, supra, and Wallace McClure, International Executive Agreements (New York, 1941), 312. 116 always had to be weighted. Congress could, as it did in the 1950's in the case of the recognition of the People's Republic of China, obtain a strong, even an equal, voice in American policy if that policy be- cane deeply entangled in politics. Nor was an executive ever free of the impact of history and tradition upon his chosen course of action. It is difficult to imagine any man who could be elected president of the United States acting in foreign affairs in a manner that was so contrary to American traditions that the judiciary would be compelled to speak out against his conduct. History has produced no such Chief Executive. He was also restricted by the growing importance of con gressional appropriations in any foreign policy venture. American programs increasingly assumed a character that required large outlays of money. Financially the President remained the captive of the legis lature which could scuttle his most ambitious schemes with its control of the purse strings. The practicality of satisfying Congress, there fore, continued to play a major role in shaping his conduct. Finally, however, American foreign policy— for so long as Curtiss-Wright is not overruled--rested--and rests— upon the good faith of the executive. Senator Fulbright in examining foreign policy in the mid-twentieth century noted in 1963 that the dicta in Curtiss-Wright might not be legally viable. But if Sutherland had been wrong legally he was right practically. Americans, wrote the Senator, must give the Executive a measure of power in the conduct of foreign 117 « affairs Chat we have hitherto jeal ously withheld.25 The pressures of international relations today leave little room for constitutional restraints upon the President in the conduct of Ameri can diplomacy* Executive powers, which in the past were only important during the temporary periods of emergency, now seem, in a constant atmosphere of crisis, to be permanent. 25 J. Wm. Fulbright, "American Foreign Policy in the 20th Century Under an 18th Century Constitution," Cornell Law Quarterly, XLVII (1961), 1, at 2. CHAPTER VII WAR, PEACE AND WORLD RESPONSIBILITY Behind the dicta in Curtiss-Wright was the judicial perception that in the twentieth century the world had grown smaller. Inter national politics had become more complex and interrelated, requiring a growing technical competency. The day of unhurried diplomacy sub ject to domestic legallimitations, such as separation of powers, seemed to be dying. America became increasingly aware that sacrifices necessary for self-preservation in wartime might extend beyond hostilities into a period of nominal peace. And under these conditions cherished conceptions of constitutional limitations were increasingly unrealistic in the conduct of foreign policy. Everyone, of course, was not ready to agree with Sutherland's opinion— even though it said little that had not been previously hinted at in judicial decisions. But the challenges of the Second World War and the Cold War found executives more and more practicing what the Court had preached. The President, faced with mounting inter national pressures, acted as he felt he must to guarantee American security. In doing so it was fortunate--but not essential— that he could point to Sutherland's dictum as a legal rationalization of his conduct. 118 119 The extent of the expanded presidential prerogative became clearest in the matter of declaration of war. The legislature retained sole authority to make a formal declaration— though in practice this had always depended on presidential initiative.^ But Congress' power became increasingly more theoretical than real. As chief diplomat, the President determined the course of foreign policy; as Commander- in-Chief he could send the armed forces where he saw fit. This meant he could involve the nation in a conflict without consulting Congress and the legislators, presented with a fait accompli brought about by executive maneuver, had little practical option but to recognize the 2 existence of war. Prior to World War 1, Wilson's profound commitment to neutral rights left Congress little choice in the winter of 1917 when Germany (with the resumption of unrestricted submarine warfare) openly challenged American rights on the high seas. The War Resolution passed in April seemed predetermined by earlier presidential policies. Franklin Roosevelt's decisions regarding American action in the North Atlantic in early 1941 put the country in a position where war could easily have been thrust upon it. Only Hitler's unwillingness to challenge the United States at this point prevented an earlier conflict Elmer Plischke, Conduct of American Diplomacy (Princeton, 1961), 107. ^Edward S. Corwin, Total War and the Constitution (New York, 1947), 13; Wm. Howard Taft, Our Chief Magistrate and His Powers (New York, 1916), 94. 120 with Germany. Even clearer was the near inevitability of a Japanese attack following economic sanctions imposed by the executive against Japan in October, 1940 and July, 1941. Certainly Congress' role on December 8 th was scarcely more than the legal recognition of a painful reality. The need for immediate response to international challenges further emphasized the importance of executive rather than legislative decision-making. The relatively leisurely entrance of the United States into war in 1812, 1846, 1898, 1917 and even 1940 no longer seemed realistic. As events in Korea and Viet Nam would show, even the formality of a declaration of war became less Important as the United States entered into hostilities without going through the preliminary technicality of congressional action. President Truman acted to send American air and naval forces into Korea under the authority of a United Nations' resolution to furnish assistance to the Republic attacked from the north. The June 27, 1950 emergency session of the Security Council which passed this resolution had been sunmoned at the call of the United States. On June 30th, Truman ordered ground forces into the conflict. The rapidly growing American contingent was there as part of the United Nations force conducting, what was officially called, a police action* The military involvement in Viet Nam resulted from United States obligations under the South East Asia Cooperative Defense Treaty to which it had been a signatory in September, 1954. South Viet Nam, a protocol state, began to receive military and economic aid from the United States that same year. As 121 the intensity of the civil war in that nation increased, so did American commitments. By 1961 on presidential orders United States' helicoptor pilots were returning Viet Cong fire. The number of advisory personnel in Viet Nam grew with the continued escalation of hostilities as their activities became more involved with the actual shooting phase of the conflict. Not until August, 1964 did the President obtain legislative sanction for the use of United States forces to repel armed attacks and prevent further aggression in Viet Nam. Yet in the period from 1961 to 1964 the nation had been involved in war--one conducted by ex ecutive fiat. Basing his actions on treaty commitments, the executive, in both Korea and Southeast Asia, technically crossed over the constitutionally imposed barrier of the separation of powers. The twentieth century witnessed not only a diminution in the importance of the congressional power to declare war, but also a grow ing tendency on the part of the executive to depend on his prerogative rather than on delegation as the basis for diplomatic conduct. This tendency was different from the historic contest over recognition which had bedeviled executive-legislative relations for a full century, or the long standing agitation in the House to uphold statutory enactments as against treaties in which they had no voice. The new form of executive action seemed to undercut constitutionally estab lished legislative powers. In addition to this development, the in creasingly common employment of executive agreements in lieu of treaties impressed many as improper if not unconstitutional. Other problems 122 such as the trial of war criminals or of Americans dwelling or stationed abroad also seemed to be beyond congressional control. The growing independence of the executive in the conduct of foreign policy— even when his decisions led to armed conflict— became 3 apparent during the presidency of Woodrow Wilson. The first demon stration of the President's desire for congressional cooperation coupled with a willingness to go it alone when the legislators failed to cooperate came over the Mexican problem. Wilson, eager to do some thing to bring down Huerta, yet indecisive about the actual employment of force, turned to Congress in April, 1914 for a resolution backing the use of military units to take Veracruz if the President felt it necessary. To Wilson's displeasure Congress launched a debate on the proposal which resulted in no legislative decision having been reached at the time he felt compelled to act. Without any congressional support Wilson embarked upon the occupation of Veracruz. What followed was not the routine military exercise for which Wilson had hoped. Nineteen Americans and more than a hundred Mexicans died in the occupation. The President had unilaterally set America on a course leading to hostilities. Wilson, on the eve of the First World War, depended more on delegation than on the reservoir of presidential powers. But when 3 See Corwin, Total War. 38-55 for discussion of powers delegated to Wilson during this period. 123 frustrated in Congress, as he was in the case of arming merchantmen, he once again acted on his own authority. His proposal to Congress on February 26, 1917 sought solidarity rather than permission: No doubt I already possess that authority £to arm United States merchant vessel$7 without special warrant of law by the plain im plication of my constitutional duties and powers; but I prefer, in the present circumstances, not to act upon general implication. The little group of eleven wilful senators thought otherwise and talked the President's bill to death. Acting without congressional legislation Wilson then undertook a program of arming the merchantmen, a course which portended future military clashes with the German Empire. The rapid drift toward war would however soon make this pro gram of American armed neutrality moot.** After the war, the executives and legislators, together with the American people retreated into isolationism. And the Court during this period, found no occasion— or need— to pass on the legality of Wilson* s employment of executive prerogative in his wartime foreign policy. Not until 1936, when the possibility of a European war seemed more and more immediate, did the Court find a case in which it could 4 Richardson, ed., Messages of the Presidents, XVII, 8211. See Rossiter, Constitutional Dictatorship, 242. ^Corwin, The President Office and Powers (rev. ed., New York, 1948), 286. 124 articulate its view of presidential powers. Then it underscored its views concerning the plenary power of the President. In United States v. Curtiss-Wright Export Co.. decided that year, it discussed the traditional plenary powers of the President in the conduct of foreign affairs. Further, it pointed to the broad delegation of authority to the executive by Congress in the immediate case at hand. President Roosevelt, said Justice Sutherland, could act as he had on the basis of either the legislatively conferred authority or the prerogatives 6 of his office. After 1939 with war in both Europe and the Far East, Roosevelt saw the need for maximum flexibility in shaping and executing American foreign policy and the benefit of broad diplomatic authority to meet the emergencies which lay ahead. Although Congress in many instances, for example the Lend Lease Act, continued to delegate the executive broad authority, the opinion in Curtiss-Wright had gone far in relieving him from a dependence on legislative grants.^ His power both as Commander-in-Chief and as the leader of American diplomacy was inherent and plenary. Roosevelt viewed the people rather than any congressional grant as the source of his power. Faced with an in creasingly hostile world situation, he proceeded to conduct his g diplomacy on this basis. ^U .S . v. Curtiss-Wright, 329. ^Corwin, Total War, 29. g See Roosevelt's view expressed to Congress: Cong. Rec., vol. 8 8 , part 5, 7044, 77th Cong. 2nd Sess. (Sept. 7, 1942). 125 The clearest example of the Roosevelt!an approach was the destroyer-bases deal. After the fall of France in 1940, England requested destroyers and other armament from the United States in ex change for leases on Atlantic insular bases. The constitutionality of such an exchange without congressional authorization immediately be came a question--which Roosevelt left to his Attorney General, Robert 9 Jackson. On August 27, 1940 he received the latter*s opinion. Citing the Curtiss-Wright decision, Jackson affirmed presidential power to acquire overseas bases. Such a step, he said, fell within the exec utive's control of foreign relations. As to the release of American destroyers, Jackson concluded that the executive, as Commander-in-Chief, under the terms of an 1883 statute providing for the disposal of worn out vessels, could exchange those "overage" vessels which were not necessary for national defense. By the terms of the Constitution, this properly would seem to belong to Congress. But Jackson's opinion concluded that it instead rested with the Commander-in-Chief. The action of Roosevelt was questioned in some quarters, but its benefits were too apparent for any serious challenge. The issue was never taken 10 to court. 9 See Robert H. Jackson, "A Presidential Legal Opinion," Harvard Law Rev.. LXVI (1953), 10 Corwin, Total War, 26-27; C. Herman Pritchett, "The President and the Supreme Court," Journal of Politics, XI (1949), 89-90; William L. Langer and S. Everett Gleason, The Challenge of Isolation, vol. 2 (Harper Torchbook ed., New York, 1952), 482-483, 511-513, 744-776. 126 Worried by the deteriorating situation in the Atlantic and unsure of senatorial support for bold foreign policy moves, Roosevelt, acting unilaterally, soon took additional steps, which further compromised official United States neutrality. In August, 1940 he entered into an agreement with Canada for a joint defense board to coordinate the 11 defense of the northern hemisphere. The next year in February and March, he participated in the ABC staff conferences which discussed American, British and Canadian military cooperation in the event the 12 United States entered the war. By executive agreement on April 9, 1941 with Denmark, he acquired the right to occupy Greenland and on July 7, 1941, again without senatorial action, obtained from the new 13 Republic of Iceland permission to send American forces to that island. America had been moved from a position of neutrality to one resembling belligerency not by Congress but by the President of the United States acting alone. By late 1941 neither President nor Congress could control world events. The relative constitutional authority of both branches in shaping foreign policy seemed of little importance as decisions made in other world capitals rather than in Washington dictated the part Americans would play for the next three years. Under the pressure of ^William L. Langer and Everett S. Gleason, The Challenge of Isolation, II (Torchbook ed., New York, 1952), 704ff. *^Foster Rhea Dulles, America1s Rise to World Power (Torchbook ed., New York, 1955), 194. *^See Dept, of State Bulletin, vol. 4, 443-447 (April 12, 1941) and Dept, of State Bulletin, vol. 5, 15-18 (July 12, 1941). 127 fast moving events and a growing need for secrecy and high level give and take, the executive agreement increasingly became an accepted manner of entering into commitments. Roosevelt expressed the United States' long range goals in the Atlantic Charter, an executive agreement concluded in 1941 just prior 14 to the war. Shortly after the beginning of hostilities he entered into another such agreement, the United Nations Declaration, which committed the nation to a common cause with twenty-six other nations against the Axis. The majority of the diplomatic agreements during the war also bypassed the Senate* Those concluded at Cairo, Teheran, Yalta and Potsdam were executive commitments. And these decisions, which so significantly shaped the future course of American diplomacy, clearly demonstrated presidential emancipation from the senatorial two-thirds. However, the same executive control of foreign policy and inter national commitments which seemed unlimited caused a growing uneasiness in both popular and congressional circles. This distrust of the whole sale employment of presidential powers would later emerge— in the form of the Bricker Amendment--as a challenge to the whole concept of executive independence in foreign policy. ^See Dept, of State Bulletin, vol. 5, 125-126 (Aug. 16, 1941), 147 (Aug. 23, 1941). 15 See Dept, of State Bulletin, vol. 6 , 3-4 (Jan. 3, 1942). 128 By 1942 the Court--not oblivious to contemporary International turmoil--refused to draw the limits of inherent executive powers in the face of war. 16 In the Japanese relocation cases the Court s majority conceded sweeping domestic powers to the executive. It was in no mood to challenge executive moves in foreign affairs which in even less trying times it had conceded were beyond judicial ken. The Court con ceded to the President, as Commander-in-chief, the power necessary to defend the nation. If in the process the spirit of the Constitution suffered, the damage was not irreparable.^ 18 Judicial abdication in wartime had distinguished precedents. Certainly the Civil War had revealed that the justices of the Supreme 16 Corwin, The President Office and Powers. 317. ^ Q n the matter of Japanese relocation see Norman J. Small and Lester S. Jayson, eds., The Constitution of the United States of America, 443-445; Rossiter, The Supreme Court and the Commander-in- Chief, 53; Rossiter, Constitutional Dictatorship, 281-283; Milton R. Konovitz, The Alien and the Asiatic in American Law (Ithaca, 1946), Richard F. Wolfson, “Legal Doctrine, War Power, and Japanese Evacua tion," Kentucky Law Review, XXXII (1944), 328; Eugene V. Rostow, "The Japanese American Cases— A Disaster," Yale Law Review, LIV (1945), 489; C. German Pritchett, "The President and the Supreme Court," Journal of American Politics, XI (1949), 80. With regard to the Nazi saboteur case see Small and Jayson, eds., The Constitution, 450-452; Corwin, Total War, 111 et. seq.; Rossiter, The Supreme Court and the Commander- in-Chief, 115 et. seq.; Robert E. Cushman, "The Case of the Nazi Saboteurs," Am. Pol. Sc. Rev., XXXV (1942), 1082. And with regard to martial law in Hawaii see Small and Jayson, eds., The Constitution, 449-50; Corwin, Total War, 100-105; Louis W. Koenig, The Chief Executive (New York, 1964), 250 - 251. Bernard Schwartz, "The War Power in Britain and America," New York University Law Review, XX (1945), 325, 465 at 470. 129 Court realized the nation might have a separate constitution in wartime from that operative in times of peace. But in the past the return of peace had caused a sharp reaction in the judicial conscience. The Court returned to the "old" constitution with a vengeance and lectured the political departments for their lapses during the time of con- 19 flict. The Second World War in which the Justices again applied the "wartime" constitution ended but this time the Court, faced with the challenge of the Cold War, at least in the area of foreign affairs, 20 failed to react as it had in the past. The complex international situation after 1945 raised this major question for the judiciary: How contrary to the spirit of the Con stitution of the United States could American foreign policy be? The Court's attitude in the war criminal trials, in the treatment of aliens, and in the trial of overseas servicemen and their dependents gave its answer. 19 Note for example Ex Parte Milligan, 4 Wall. 2 (1866) and U.S. v. Cohen Grocery Co., 255 U.S. 81 (1921). 20 The Court viewed a widening category of things as falling within the classification of foreign affairs. It followed a course of deference to the political departments in these matters. Chicago and Southern Air Lines. Inc. v. Waterman Steamship Corp., 333 U.S, 103 (1948), see especially p. 110. Supporting this tendency is Pritchett, Journal of Politics, 90. Contra is John P. Frank, "Political Questions," in Edmond Cahn, ed., Supreme Court and Supreme Law (Bloomington, 1954), 41. Frank main tains that parts of the order in the Chicago and Southern Air Lines case could have been reviewed without any compromise of America's foreign policy. This is essentially the argument of the dissenters in that case. 130 At the end of the Second World War the victorious United Nations tried civil and military leaders of the Axis powers as war criminals. Special commissions including American representatives conducted these trials. The defendants in these matters questioned the validity of these tribunals under international law and under the Constitution of the United States. In several cases the Supreme Court reviewed the defendants' contentions. Three cases serve as examples of judicial thinking. In 1945 General Yamashita, Commander of the Japanese Imperial Army in the Philippines, faced a United States military commission on charges of war crimes. On December 7, the commission found him guilty and sentenced him to death. He sought writs of habeas corpus and pro hibition, the denial of which he appealed to the United States Supreme Court. On review in 1946, the Court concluded the writs were properly 21 denied. Under the war power, wrote Justice Stone for the majority, the President could constitute military commissions for prosecution of violators of the laws of war. This inherent war power did not end with the termination of hostilities, but rather, continued long enough to 22 prevent an immediate renewal of the conflict. As a part of the in herent presidential power to conduct the war the Court concluded the 21 In re Yamashita, 327 U.S. 1 (1946) 22 Ibid.. 12. 131 proceedings of the tribunal could not be reviewed. "The extent to which the power to prosecute violations of the law of war shall be exercised before peace is declared rests, not with the courts, but 23 with the political branch of the Government. . . Justices Murphy and Rutledge filed two lengthy dissents. "War breeds atrocities," wrote Murphy, and these "have a dangerous tendency to call forth primitive impulses of vengeance and retaliation among 24 the victimized peoples." And he was therefore pleased that in this case the Court did pause long enough to go through the motions of a review of the political decision. But he felt the Court had reached the wrong conclusion in its review. This trial, argued Murphy, lacked 25 historical precedent. Its "novelty is legal as well as historical." Yamashita should have obtained his writ. Rutledge noted in his dissent the inconsistency of the majority's language and its action. They had found the creation of such a commission by the President "subject to no judicial restraint on any account. . . ." And yet they did " 'examine* the proceedings 26 generally." Any review, concluded Rutledge, indicated that Yama shita' s trial was full of "departures from the fundamentals of fair play." He, too, would have granted the writ. 27 23Ibid., 13. 24Ibid., 29. 25Ibid., 43. 26 Ibid., 46. 27 Ibid.. 80. 132 The majority, for all its words, had clearly concluded that in the case of General Yamashita, the Constitution afforded no protection. The President under such circumstances was free of constitutional restraints. In a second case a group of high officials in the wartime Japanese government appeared in 1948 before the International Military Tribunal of the Far East. That body found them guilty of various war crimes against humanity. They appealed the denial of their motion for leave to file petitions for writs of habeas corpus to the Supreme Court, which in a per curiam decision found the international tribunal 28 was not an instrumentality of the United States. General Douglas MacArthur as Supreme Commander for the Allied Powers had set it up. As such the United States Supreme Court had no authority to review or grant the motion for leave to file the petition for a writ of habeas corpus. Justice Douglas concurred, but he felt his colleagues' state ment did not "adequately analyze the problem." He came to the same 29 conclusion by a different route. The conclusion is therefore plain that the Tokyo Tribunal acted as an instrument of military power of the Executive Branch of govern ment. It responded to the will of the Supreme Commander as expressed 28 Hirota v. MacArthur, 338 U.S. 197 (1948). 29Ibid., 203. 133 in the military order by which he constituted It. It took. Its law from its creator and did not act as a free and Independent tribunal to adjudge the rights of petitioners under international law. . . . It did not therefore sit as a Judicial tribunal. It was solely an instru ment of political power. Insofar as American participation is concerned, there is no constitutional objection to that action. For the capture and control of those who were responsi ble for the pearl Harbor incident was a political question on which the president as Commander-in-Chief, and as spokesman for the nation in foreign affairs, had the final say. While discussing this topic it is worth noting the circumstances surrounding the post war trials which were taking place in Europe during this same period. The United Nations had created a tribunal at Nuremberg to try Nasi war criminals. Robert H. Jackson, an Associate Justice on the Supreme Court, was the United States representative. The trial which involved many defendants and which amassed voluminous testimony continued for nearly a year. The whole process was alien to American legal traditions. But unlike the Japanese war criminal trials, no suit came before the Court in which it was required to pass upon the proceedings at Nuremberg. A third case was Johnson v. Eisentrager which came before the 31 Court in 1950. This matter once more involved the jurisdiction of military authorities. The defendants, German nationals captured in 30 J Ibid .. 215. 31339 U.S. 763 (1950). 134 China, had engaged in military action against the United States after the date of Germany's surrender, May 8 , 1945. They were tried by a United States military tribunal and convicted of violating the laws of war by engaging in such military activity after their nation had left the war. They sought writs of habeas corpus, appealing their petition to the Supreme Court. Justice Jackson, for the majority, found the “executive power over enemy aliens, undelayed and unhampered by litigation, has been 32 deemed, throughout our history, essential to wartime security." The defendants in this case had no right to a writ of habeas corpus. As non-resident aliens they even lacked the limited constitutional rights extended to enemy aliens dwelling in the United States. In this action the petitioners had no right of access to American courts. From these decisions it was clear the President had authority as the Commander-in-Chief and the sole organ of foreign relations to establish tribunals or commissions for the trial of defeated enemies. The Supreme Court deferred to the decisions reached in these proceedings 33 denominating them political, not judicial. The Court's expressions in regard to the war crime trials made clear the limited applicability of the United States Constitution to 32Ibid.. 774. 33 Glendon A. Schubert, The Presidency in the Courts (Minneapolis, 1957), 197, 198; Charles Fairman, “Some New Problems of the Consti tution Following the Flag," Stanford Law Review. I (1949), 587, at 619. 135 former enemies. A similar attitude became apparent in the problem of aliens seeking admission into or the right to remain within the United States. How far were they protected by the Constitution or by treaties concluded with their country of nationality? In the nineteenth century--over the matter of oriental immigration— a similar question had come before the Court. The answer it gave then was the one it gave again: the Court would afford little protection; the matter was political not judicial. The problem was now however set in a new context. Racial in tolerance and economic self-interest were the engines behind the nine teenth century move to exclude the Chinese and Japanese. The new problem raised by the unorthodoxy of certain political faiths— such as anarchism or communism— was one of intellectual conformity. In the twentieth century those aliens unwilling to accept certain rules of the democratic game were unwelcome. Two decisions in the second decade reaffirmed congressional authority to exclude aliens on the ground that their presence in the 34 United States was hurtful. In both cases the aliens were prostitutes. By the early 1950's, however--under the pressures of the Cold War— the presence of an alien holding subversive ideas could be as prejudicial 35 to the public interest as a prostitute or a mental incompetent. 34 Zoconaite v. Wolf, 226 U.S. 272 (1912) ; Bugajewitz v. Adams, 228, U.S. 585 (1913) . See also Rosenberg v. Fleuti, 374 U.S. 449 (1963) . 35 Galvan v. Press, 347 U.S. 522 (1954) ; Shaughnessy v. Mezei, 345 U.S. 206 (195 3). 136 Individual foreigners sought judicial help in entering or re maining in the United States. The Court would intervene on occasion to insure that procedural due process had been honored. But beyond this it would not go. Congress, held the Court, could exclude aliens whose presence in the United States was harmful. This was a political power fundamental to any sovereign entity and held by Congress immune from judicial control. Justice Jackson made the extent of judicial deference clear in the 1951 opinion in Harisiades v. Shaughnessy: It is pertinent to observe that any policy toward aliens is vital ly and intricately interwoven with conteiqporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely im mune from judicial inquiry or inter ference.^ This judicial deference to the political departments took two forms. In the first instance the Court upheld executive exclusion or expulsion of aliens on the basis of congressional delegation. In the case of Ludecke v. Watkins, decided in 1948, it noted that the statute conferring authority to the president was "as unlimited as the legis- 37 lature could make it." In such a case the Justices would not 36 Harisiades v. Shaughnessy. 342 U.S. 580 (1952), 588-89. 37 335 U.S. 160 (1947), 164. See also Schwartz, New York Uni versity Law Review. XX, 472. 137 meddle with those powers now united in the hands of the President. Sign!ficantly, He who was entrusted with such vast powers in relation to the outside world was also entrusted by Congress, almost throughout the whole life of the nation, with disposition of alien enemies during a state of war. Such a page of history is worth more than a volume of rhetoric.^® The Court refused to question the delegation of power or the belief of the executive that enemy aliens must continue to be excluded even 39 though hostilities with the enemy had ceased. Reaffirming the polit ical question doctrine, Justice Frankfurter for the majority of his brothers concluded, The very nature of the President's power to order the removal of all enemy aliens rejects the notion that courts may pass judgment upon the exercise of his discretion. ® The Court explained the second justification for judicial 41 deference in 1930 in Knauff v. Shaughnessy, the War Bride case. Wrote Justice Minton in that opinion: . . . there is no question of in appropriate delegation of legisla tive power here. The exclusion of 38 Ibid., 173. 39 Ibid., 170. 4 0 Ibid.. 164. Knauff v. Shaughnessy, 338 U.S. 537 (1950). 138 aliens is a fundamental act of sov ereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation^ In both the Ludecke and Knauff case the Court noted its lack of competence in foreign affairs. And, once again, it fell back for ex planation on separation of powers as an underlying doctrine preventing all but the most cursory judicial review of the policies set by the 43 political department. The United States Supreme Court could pro vide little constitutional protection to the aggrieved enemy alien. Finally the Court faced the question of the trial of United States citizens residing overseas. What constitutional rights would it afford to military personnel on duty in a foreign country? Did the same standards apply to servicemen's dependents living abroad? These questions, of course, could not have been raised had not executive action already set the stage for them by placing American forces abroad and allowing their families to accompany them. This action in itself raised some questions. Some Americans had long believed the stationing of troops over seas in nominal peacetime to be outside the presidential prerogative. The familiar police measures in the Dominican Republic in 1905, Cuba in 1906, or Nicaragua from 1912 to 1933 resulted in some temporary but 42Ibid.. 542. 43 Ibid., 543 and Ludecke v. Watkins, 170, 173. 139 44 not serious congressional challenges. The Presidents pointed to a prior treaty commitment or the traditions of the Monroe Doctrine as justification— beyond the terms of the Constitution— for their moves. In any case these police actions had been conducted on a small scale and were of brief duration. Nor were Wilson's two forays into Mexico--Veracruz in 1914 and the Punitive Expedition against Villa in 1916— the cause of heated debates over executive authority to control the armed forces. In this area legislative challenges to the Presi dent became acute only after World War II. American collective security commitments under the United Nations, the Rio Pact of 1947 with the other Western Hemisphere republics or the North Atlantic Treaty concluded in 1949, seemed to diminish the possibility of meaning ful congressional checks on the executive in the future. The United Nations Charter had, on July 25, 1945, obtained easy senatorial ap- 45 proval after a brief debate lasting six days. Only two senators voted against it. But the near unanimity clouded the fact that the whole matter of American military commitments under the Charter was still unclear. Later in 1945 some senators proposed amendments to the For a full list of such cases through 1941 see James Grafton Rogers, World Policing and the Constitution (Boston, 1945), 93-123. See also George Sutherland, Constitutional Power and World Affairs (New York, 1919), 109; Plischke, Conduct of American Diplomacy, 117, 119; L. Larry Leonard, The Elements of American Foreign Policy (New York, 1953), 80. 45See recommendation of U.S. Congress, Senate Committee on Foreign Relations, Hearing on the Charter of the United Nations, 79th Cong., 1st Sess., 1945, 14-15; U.S. Congressional Record, 79th Cong., 1st Sess., 1945, LXXXXI, pt. 6 , 8190. 140 United Nations Participation Act which would have required congressional approval before the president could commit American military forces to 46 the use of the United Nations. The Senate rejected these proposals. Later presidential action in the case of Korea only pointed up the reality of the fears of those legislators who had seen their already 47 limited voice in foreign policy diminishing further. The question of American forces overseas was a dramatic point about which the legis lative versus executive debate would focus. The Justices in a judicial aside in the case of Johnson v. Eisen- trager in 1950 made it clear that they regarded the dispatching of servicemen overseas as a decision beyond the scope of judicial examin- 48 ation. Justice Jackson for himself and four of his brethren observed, Certainly it is not the function of the Judiciary to entertain pri vate litigation. . . which challenges the legality, the wisdom, or the propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region.^ When in 1950 Ohio's Senator Robert A. Taft, who significantly had fought for reservations to the North Atlantic Treaty in 1949 that would See Richard W. Leopold, The Growth of American Foreign Policy (New York, 1965), 632-633. 47Norman J. Small and Lester S. Jayson, eds., Constitution of the United States of America (Washington, 1964), 470. 48 339 U.S. 763, 789. See also Clinton Rossiter, The Supreme Court and the Commander in Chief (Ithaca, 1951), 131; Sutherland, Constitutional power, 109. AQ Johnson v. Eisentrager, 789. 141 have required legislative assent before any American units took part in any overseas military action, called for a reexamination of America's growing world involvement, he struck a responsive note in some quarters* By attacking military aid to Europe, he reopened the contest he had lost at the time the North Atlantic Alliance was formed.^ The debate that ensued found internationalists of both parties arrayed against what remained of the Republican isolationists. The topic under dis cussion expanded to include most of the crucial issues in contemporary foreign policy. Where was America to draw the line? How entangling should her new alliances be? What was to be her commitment to her allies? This last question raised the constitutional problem: the extent of presidential authority to deploy military forces free of congressional approval The Senate, hoping to preserve a voice in United States military commitments, passed a resolution in 1951 calling on the President to consult with the appropriate Senate committees before assigning Ameri- 52 can troops abroad. But after all the dust had cleared, it remained clear that the President, as Commander-in-Chief, still retained vir tually unlimited constitutional authority to deploy United States ^See New York Times, January 16, 1951, 10. ■^U.S. Congress, Senate Committee on Foreign Relations, Hearings on NATO, 81st Cong., 1st Sess. 1947, 47; Plischke, Conduct of American Diplomacy, 119. 52 The Wherry Resolution (Sen. Resol. 8), U.S., Congressional Record, 82nd Cong., 1st Sess. 1951, LXXXXVII, Pt. 1, 94, 318-332 (see especially 325-326 for constitutional arguments), 511-519, 544-547, 669-672. 142 forces as he saw fit. His freedom from a political point of view re mained less clear. What he could legally do might still be inadvisable 53 or impossible practically. president Eisenhower in January 1955 at the time of the Formosan Straits crisis provided history with an example of the latter point. Although he believed he had constitutional power to act alone, he called for and received legislative authorization for 54 the employment of force to secure Formosa and the Pescadores. In any event once the President, with or without congressional advice, sent American military forces abroad someone was bound to resurrect the old problem of the Constitution following the flag. That problem in one form had been subject of the Insular cases. There, the rights of territorial inhabitants had been at issue. It now came up in another form. To what extent did the Constitution insure procedural safeguards for American military personnel and their dependents resi dent abroad who were accused of a crime? In 1891 the case of In re Ross had made clear the limited pro- 55 tection afforded to Americans in such cases. A member of the crew 53Plischke, Conduct of American Diplomacy, 119; Rossiter, The Supreme Court and the Commander in Chief, 131. 54 Message of President in U.S. Congressional Record, 84th Cong., 1st Sess., 1955, Cl, Pt. 1, 600-601, joint resolution as submitted 669, and approved 993-995. 55 140 U.S. 453 (1891). See also Quincy Wright, "Treaties and the Constitutional Separation of Powers in the United States," American Journal of International Law, XII (1912), 64, at 71. For a discussion of the Ross case and its background see Justice Frank furter's concurring opinion in Reid v. Covert, 345 U.S. 1 (1957), 54-64. 143 of a United States merchant ship docked in Yokohama harbor was accused of murder of a fellow sailor on board his vessel. Under the terms of a treaty with Japan an American consular court tried and convicted Ross and in 1880 sentenced him to death. The sentence was subsequently commuted to life imprisonment. A lower court denied the defendant's motion for discharge and its decision was appealed to the United States Supreme Court. The opinion concluded that the Constitution did not protect an American citizen overseas for it "can have no operation in another 56 country." The Court further said that rather than complaining that the trial by consular court deprived him of what he claimed as consti tutional rights, he should be grateful he had avoided the courts of a non-Christian country and escaped the possibility of "extreme cruelty ..57 and torture." Ten years later the Justices again noted the limited application of the Constitution outside the United States. The Court refused to grant habeas corpus to prevent the extradition of a United States postal employee to Cuba where he stood accused of embezzlement committed 58 during American intervention in that island. Said Justice Harlan: When an American citizen commits a crime in a foreign country he cannot complain if required to submit to ^ In re Ross, 464. 57Ibid., 465. 58Neely v. Henkel, 180 U.S. 109 (1901). 144 such inodes of trial and to such punish ment as the laws of that country pre scribe for its own people, unless a different mode be provided by treaty stipulations between that country and the United States.59 The Bill of Rights, that is, has no application in a foreign country.^ The Cold War conanitments of the United States saw it entering into a series of agreements with other nations outlining the conditions under which American military personnel could be stationed in those countries. These executive agreements were negotiated pursuant to the provisions of treaties concluded between the United States and the foreign powers. A part of each of them was provision for the respective criminal jurisdiction of United States tribunals and the courts of the nation in which the military forces were stationed. The usual terms provided for immunity of American personnel from local process. The 61 United States could, however, waive these provisions. 59 Ibid.. 123. ^ Ibid., 122. See also Charlton v. Kelly, 229 U.S. 447 (1913) where Court upheld extradition of United States citizen to Italy on a charge of murder. It was, said the Court, up to the political depart ments to conclude if the treaty with Italy was still in effect. The whole topic of treaty obligations and the ability of foreign signator nations to live up to their part of the agreement belongs to the Commander-In-Chief and is beyond judicial cognizance. Clark v. Allen, 331 U.S. 503 (1947), see especially 509-510. ^See George Stambuk, "Foreign Policy and the Stationing of American Forces Abroad," Journal of Am. Politics, XXV (1963), 472; Small and Jayson, eds., Constitution, 496-497. Justice Reed in 1955 dissented in Toth v. Quarles, 350 U.S. 11 (1955) . His opinion, at page 28, stressed the foreign policy con siderations present in cases of this type: It is not for the courts to ques tion the wisdom of the legislation. 145 American forces stationed in Japan were covered by such a status of forces agreement when in 1957 the celebrated Girard Case broke. Specialist Third Class Girard shot a Japanese woman on the range area in a United States military post in Japan. The Japanese sought jurisdiction of the case, while the United States resisted their claim. But as international pressures mounted the Departments of Defense and State, with presidential confirmation, consented to a waiver of juris- 63 diction. Japan then indicted Girard, but he sought a writ of habeas corpus from a United States District Court. It denied the writ, but enjoined delivery of Girard to the Japanese authorities. The Supreme Court on certiorari reviewed both the denial of the writ and the granting of the injunction. The per curiam decision found no consti tutional barrier to the waiver of jurisdiction by the Defense and State Departments. Such a decision was "exclusively for determination of the 64 Executive and Legislative Branches." The lower court, concluded the Its obvious purpose was to assure, insofar as discipline may do so, the proper conduct of our far-flung and numerous military personnel in foreign lands. One need not stress the necessity of orderly conduct by the military on foreign posts for the maintenance of good relations in friendly or vanquished countries. ^^Wilson v. Girard, 354 U.S. 524 (1957). f% ^ Ibid., 529 and Appendix B, 546-47. See also Robert A. Horn, "The Warren Court and the Discretionary Power of the Executive," Minnesota Law Review, XLIV (1960), 639, at 661ff. 64 Wilson v. Girard, 530. 146 opinion, therefore properly denied the vrit but erred in granting an injunction. This obvious tendency toward judicial deference found in the war criminal trials, treatment of enemy aliens and the trial of servicemen overseas was not all encompassing. Contemporaneous with the develop ments which led to the Girard case was the problem of servicemen's dependents who had accompanied them overseas. Were they too beyond the Constitution's protection? Justice Black had anticipated this question in his 1950 dissenting opinion in Johnson v. Ei sentrager--a case in which the Court’s majority had found that an enemy alien who had been convicted by a military tri bunal solely under the control of the United States could not test the 65 decision by a writ of habeas corpus. In his dissent, Black warned of the future consequences of the majority holding: If the opinion thus means, and it apparently does, that these peti tioners are deprived of the privi lege of habeas corpus solely because they were convicted and imprisoned overseas, the Court is adopting a broad and dangerous principle. The range of that principle is under lined by the argument of the Govern ment brief that habeas corpus is not even available for American citizens convicted and imprisoned in Germany by American military tribunals. By 1957 a new plurality of the Justices were sympathetic to Black's view that the Constitution did apply in cases of overseas 65 339 U.S. 763 (1950), dissent starting at 791. 6 6 Ibid.. 795. 147 civilian personnel accompanying the military. They so held in Reid v. 67 Covert. In that case Mrs. Covert, wife of a sergeant in the United States Air Force, killed her husband at an airbase in England. She was tried by a court martial, found guilty of murder and sentenced to life imprisonment. She petitioned for a writ of habeas corpus which the lower court granted. The Government appealed the matter to the Supreme Court, where it was consolidated with another case with similar facts for review.^® Justice Black wrote the Court's opinion holding the Uniform Code of Military Justice provision for a court martial of "all persons . . . accompanying the armed forces" into foreign countries could not "constitutionally be applied, in capital cases, to the trial of civilian 69 dependents . . . in time of peace." No treaty or agreement with another state could alter the applicability of the constitutional guarantees. Any treaty which provided for trial by court martial of 70 civilian dependents abridged these guarantees. Subsequent cases extended the rule in Reid to cover civilians charged with non-capital offenses during peacetime.^ 67354 U.S. 1 (1957) . 68 See facts in opinion, page 4. ^Reid v. Covert, syllabus, p. 1. ^ Ibid., 16, 17, 40-41. Concur. Grisham v. Hagan, 361 U.S. 278 (1960). 71 Kinsella v. Singleton, 361 U.S. 234 (1960) , McElroy v. Guagliardo, 361 U.S. 281 (1960). 148 It Is Interesting to note the reluctance of the Court to find constitutional coverage for American servicemen stationed abroad. For the Court to become involved in criminal prosecutions initiated against such armed forces personnel could easily complicate the exe cution of American foreign policy. What, for instance, would have been the diplomatic consequence if the Supreme Court had refused to go along with executive waiver of the Girard case to the Japanese? Could the United States, under such circumstances, have retained military bases 72 in Japan? The matter of civilian dependents accompanying the military was less difficult. In an emotion packed case the host state might feel compelled by internal political considerations to insist on juris diction even though it had by agreement previously waived this right. But in such a case, all civilian dependents could be withdrawn from that nation. Future incidents of a similar kind could be avoided. Such a concession to local pressures would not significantly endanger the complex political-military stance of the United States' foreign policy. In another area— that of passport control--the Court again showed 73 itself willing to challenge the policies of the executive department. ^Slathanial Nathanson, "The Supreme Court as a Unit of National Government," Journal of Public Law. VI (1957), 331, at 361, 362. 73 Louis L. Jaffe, "The Right to Travel: The Passport Problem," Foreign Affairs, XXXV (1956), 17. 149 Once more, It had chosen an area which was— in its opinion— remote from the inmediate policies of American diplomacy and close to domestic civil liberties. In 1958 a divided Court in Kent v. Dulles reviewed the denial of a passport to the illustrator Rockwell Kent because he was a Commu- 74 nist. The majority found the executive department's denial lacked statutory authority. The State Department did not have the broad dis cretion in approving and denying applications that it assumed in this instance. The denial of Kent's application deprived him without due 75 process of law of his constitutional liberty to travel. This decision, noted the dissent, reversed the traditional author ity of the Secretary of State to grant or withhold passports at his discretion. The legislative history reflected a belief that such executive authority was essential for the conduct of America's foreign 76 policy. No doubt the majority's opinion did complicate the conduct of foreign policy. But in the eyes of the Court it was not so great a complication as to substantially compromise American diplomacy or embarrass the President. Dividing along similar lines the Court, in the same term, decided another passport case; that of Dayton v. Dulles. 77 The majority 74Kent v. Dulles. 357 U.S. 116 (1958). 7^ibid., 125-127. See also Aptheker v. Secretary of State, 378 U.S. 500 (1964). 76 Kent v. Dulles. 131,132-33. 77357 U.S. 144 (1958) . 150 found the action of the Secretary of State in again denying a passport to an applicant because of his individual political belief illegal. It cited the opinion in Kent v. Dulles as authority. In both instances the Justices had narrowly construed executive powers, for to grant the President or his agent,the Secretary of State, discretion would result in an unnecessary abridgment of individual constitutional rights. It seemed as though foreign affairs, in this 78 instance, bowed to the protection of civil liberties. But in the 1964 October term the Court heard the case of Zemel v * Rusk, and made clear that its earlier opinions in the passport cases 79 could not be construed too broadly. A majority of six of the Justices found that the Secretary of State did have statutory authority to refuse to validate the passport of the appellant for travel to Cuba. This case, said Chief Justice Warren, was unlike Kent v, Dulles. Here there is "an administrative practice sufficiently substantial and consistent to warrant the conclusion that Congress had implicitly 80 approved it." And unlike the situation in Kent v. Dulles, the Secre tary1 s refusal was "not because of any characteristic peculiar to the applicant, but rather because of foreign policy considerations affecting 81 all citizens." ^®See Horn, Minnesota Law Review, XLIV, 6 6 8 . 79 Advance sheet, U.S. Supreme Court, October Term, 1964, N. 8 6 , decided May 3, 1965. 80 Ibid., 10. 8^Ibid., 11. 151 It was unnecessary to decide whether the President could refuse to Issue a passport solely upon his executive powers. In this case the Court could find authority In the language of congressional legis lation— the same legislation, incidentally, upon which the earlier decisions in Kent and Dayton had denied the executive this power. Chief Justice Warren made this observation regarding statutory inter pretation: . . . because of the changeable and explosive nature of contemporary in ternational relations, and the fact that the Executive is immediately privy to information which cannot be swiftly presented to, evaluated by, and acted upon by the legisla ture, Congress— in giving the Exe cutive authority over matters of foreign affairs— must of necessity paint with a brush broader than that it customarily wields in dom estic areas The three dissenters cleaved closer to the rationale of the Kent case. They would deny that Congress had delegated power to the Presi dent or Secretary of State to refuse a passport in this instance, just as they denied the "inherent" presidential authority to make 83 regulations concerning the issuance of passports. By 1940 foreign affairs assumed the highest priority they had had since the early national period. With this renewed emphasis came ft 9 Ibid.. 15. 83 See dissents of Justices Black and Goldberg, Ibid., 15ff. 152 the growing conception that modern war--hot or cold--could not be carried on with continued observance of the separation of power barriers erected by the Constitution. In such abnormal times all the branches of government must acknowledge, at least covertly, the temporary need to free the power of the state from the "system of constitutional and legal 84 limitations." The locus of power during times of crisis has traditionally been in the hands of the President. And it was here that the Court in con temporary times of war and world responsibility saw fit to leave author ity. Only in those instances when the Justices believed the question remote from basic policy decisions did they speak out. The Court, in this area as in others previously discussed, ex plained its attitudes on the grounds of separation of powers, lack of competency, possible embarrassment of the political departments, the value of executive secrecy, and the President's wide sources of information. It also took note of the pressures under which the exec utive department must act. And in a brief moment of candor one Justice admitted that the Court must realize that it could never stop 85 a President from doing what he was bent on doing. 84 Rossiter, Constitutional Dictatorship, 290. 85 Justice Jackson in Korematsu v. U.S., 323 U.S. 214 (1944), 244-45, 248. See Rossiter, Constitutional Dictatorship ., 53. CHAPTER VIII THE BRICKER AMENDMENT AND ITS CHALLENGE TO THE EXECUTIVE Diplomacy during the Second World War and the cold war emphasized the importance of maneuverability in American foreign policy. Not only did the United States' increasing world involvement call for flexi bility, it also demanded speed and--on occasion--secrecy. The need for the kind of response which often the cumbersome treaty method could not provide grew as decisions made in foreign capitals increasingly acted to shape American policy and to demand a ready response. Treaties, under these conditions, were useful for the formalizing of major diplomatic involvements such as United States commitments to the United Nations, the Rio Pact, the North Atlantic Treaty, the South east Asian Treaty, or such bilateral security pacts as those with the Philippines, Japan, Australia and New Zealand in 1951, Korea in 1953, and Formosa in 1954. But the approval of a treaty for ratification was too open, too political, and often too long delayed to serve as the major device for United States agreements with other states when prompt diplomatic accord seemed more important than legislative debate. In the place of treaties, the foreign policy makers turned to the executive agreement.^* ^Wallace McClure, International Executive Agreements (New York, 1941), 4; Elmer Plischke. Conduct of American Diplomacy (Princeton, 153 154 The same growing international commitment which limited a treaty's usefulness saw the expansion of those topics included in foreign affairs. While the President relied increasingly on executive agreements, the topics encompassed in these agreements became pro gressively more pervasive including decisions on the conduct of the war, postwar settlements and policies, overseas commitments--such as the acquisition of bases and status of military personnel located in foreign lands--and declarations of inter-American and Atlantic alliance cold war policy. What the twentieth century witnessed was the acceptance— not without serious challenges— of the interchangeability of two procedures for consumating intergovernmental relations: treaties and executive 2 agreements. This development resulted from the executive practice of assuming the power to enter into agreements without prior senatorial approval. The shock of the Cold War more and more turned the public's attention to international relations. America's break with isolationism was not without its critics. They sensed that growing international commitments somehow resulted in the trampling under foot of traditional values. They observed the growing tendency of Chief Executives to ignore what they regarded as orthodox constitutional procedures. In 1961), 442; Daniel S. Cheever and H. Field Haviland, Jr., American Foreign Policy and the Separation of powers (Cambridge, 1952), 8 . McDougal and Lans, "Treaties and Congressional Executive Agreements," Yale Law Journal, LIV (1945), 181, at 187. 155 this regard partisan debate made certain that the American electorate noted the character of Roosevelt's commitments at the wartime confer ences. Could the "betrayal" at Yalta have been consumated if it had not been conducted through an executive agreement which closed the door on any senatorial cooperation? Would America have been committed to a police action in Korea if Truman had not involved it there by his uni lateral decision? Somehow the executive's power in foreign affairs — as it had been practiced of late— was too great. A growing chorus of critics called for some limitation of the president's diplomatic free dom of action. Here the role of the Court was significant. Its statements, con cluding that for all practical purposes executive agreements stood on a basis of equality— externally and internally— with ratified treaties, gave this unilateral presidential action a kind of respectability or legitimacy. The Court had taken itself out of any role that would make it the umpire of the separation of powers. Instead its opinions 3 tended to buttress executive power. If the legislators and the public were going to curtail executive prerogatives the move must come from within the halls of Congress. The Bricker Amendment by which the legislators in the 1950's sought to limit executive freedom in the formulation and execution of foreign policy came as a reaction to this whole tendency of American 3 See statements of William H. Taft, Our Chief Magistrate, 118. 156 4 diplomacy during and after the Second World War. Tired of almost twenty years of Democratic dominance, wary of America's newfound inter nationalism, and distrustful of the executives of the country— >espe cially in light of supposed abuses of presidential power at Yalta and the frustrations at Potsdam--Senator John Bricker of Ohio and his allies set out to restrict the President's authority to enter into 5 lasting diplomatic commitments without prior legislative assent. It was not, however, executive action alone that inspired the Bricker Amendment. The sponsors of this measure believed the Supreme Court also had not played its proper role. It not only had failed to cur tail executive misuse of power, it had, through careless language and obiter dicta, enhanced the executive prerogative in foreign affairs, emancipating him even more from congressional and constitutional restraints. Behind all this public interest and congressional debate lay two concerns which served as catalysts for the proposed amendment. The first was the old problem of a treaty's relation to the Constitution 6 which the Court in 1920 had considered in Missouri v. Holland. The second was the newer problem of the executive agreement1s relation to Arthur E. Sutherland, Jr., "Restricting the Treaty Power," Harvard Law Rev., LXV (195 2), 1305, at 1311. ^Edwin Borchard, "Treaties and Executive Agreements— A Reply," Yale Law Journal, LIV (1945), 616, at 649. ^252 U.S. 416 (1920) . Missouri v. Holland also made it explicit that the federal system as such could raise few difficulties in the conduct of diplomacy. 157 treaties. The Court had discussed this in 1937 and 1942 in Uni ted 7 States v. Belmont and United States v. Pink. Only through an under standing of these two strands is it possible to comprehend the arguments of those advocating and opposing the Bricker Amendment. A treaty together with the Constitution and national laws is 8 clearly part of the supreme law of the land. In theory, at least, treaties more closely resemble the national laws than the Constitution. The court repeatedly had noted— in judicial asides— its power to measure any treaty against constitutional scripture and if necessary to find the 9- treaty unconstitutional in its domestic application. But right from the beginning the Justices had hedged on this position. Justice Chase in 1796 in the case of Ware v. Hylton made it clear that the court would 10 set aside a treaty only "in a very clear case indeed." And, as observed earlier, from that day to the present no treaty has ever been 11 held unconstitutional. Critics of the treaty power as it had 7U.S . v. Belmont, 301 U.S. 324 (1937) ; U.S. v. Pink, 315 U.S. 203 (194 2). O C. M. Micou, "The Treaty Making Power and the Constitution," Cornell Law Quarterly, VI (1920-1921), 91, at 92-93. ^American Law Review, IV, 1380. ^ 3 Dallas 199 (1796), at 237. See also Micou, Cornell Law Quarterly, VI, 94. ^John Mabry Mathews, American Foreign Relations Conduct and Policies (Rev. ed., N.Y., 1938), 556; Julian P. Boyd, "The Expanding Treaty Power," North Carolina Law Rev., VI (1928), 428, reprinted in Selected Essays on Constitutional Law, III, 410, at p. 414; William W. Bishop, "The Structure of Federal Power over Foreign Affairs," Minnesota Law Review, XXXVI (1952), 299, at 304. 158 developed In the twentieth century pressed home this last point in their arguments urging some constitutional limitation which would expressly give the Supreme Court the authority and responsibility of judicial review over treaties. The seeds of the whole controversy over the treaty power and its relation to constitutional separation of power were planted in the nine teenth century, but they sprouted in an innocuous decision in 1920. And so this case, Missouri v. Holland, which raised little controversy at the time, deserves some discussion, for the few casual words of Justice Oliver Wendell Holmes were to haunt foreign policy makers for years to come--so much so that the decision's final consequences are still not ascertainable. Certainly, argued those supporting a consti tutional amendment regarding the treaty power, Justice Holmes' opinion in Missouri v. Holland seemed to accept the notion that a treaty was the equal of the Constitution and as such not subject to judicial 12 review for constitutionality. The controversy in that case involved a treaty into which the United States and Great Britain had entered for the protection of migra- 13 tory birds. Pursuant to that agreement Congress passed implementing legislation— similar to legislation which the lower courts had earlier found unconstitutional as beyond the authority of Congress.^ The 12 Glendon Schubert, The Presidency in the Courts, (Minneapolis, 1957), 107. 13 See background of this matter in George Sutherland, Consti tutional Power, 154-155. 14 U.S. v. Shauver, 214 Fed. 154 (1914);U.S. v. McCullagh, 221 Fed. 28*f7T915). 159 Court reviewed the Implementing legislation when the state of Missouri challenged it as an unauthorized invasion of its state police power. Justice Holmes, in the course of his opinion sustaining the legis lation, drew a distinction between legislative acts based upon the regular constitutional authority of Article I and those based upon treaties, 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.15 Fixing upon this language some concluded that the treaty power was free of the usual constitutional restraints. At least, they maintained, there was room for debate. From Holmes' opinion, the previous record of the Court, and some of the language in the Girard decision, critics drew the lesson that treaties were like a constitutional amendment rather than a law. This was to become the major premise of the proponents of the Bricker 16 Amendment. Others— the vast majority of the commentators on the case--dis- counted Holmes' language and concluded that while a treaty might confer on the legislature power to enact legislation beyond that of the regular constitutional grant, it was not a constitutional amendment.^7 No ^ Missouri v. Holland, 433. ^Borchard, Yale Law Journal, LIV, 616, 628. ^7Bishop, Minn. Law Rev.. XXXVI, 299, 304. 160 treaty could go beyond the proper subjects of negotiation between 18 nations. A treaty could not be used as a means of affecting a change in the domestic separation or distribution of powers. Further, the Court still maintained the power--vague though it was--to review any legislation passed pursuant to a treaty to insure that it was "necessary and proper" for the fulfillment of the treaty obligations. In theory, therefore, the Court retained the authority to pass upon the constitutionality of treaties. Mr. Justice Black in the 1950's, a time when criticism of the treaty power was running the highest, paused once again to reassure Congress that at least five of the Justices felt that the Court could strike down an international 19 agreement as contrary to the Constitution. But while the Court con tinued to indicate that there were limits on the treaty power, observers persisted in noting that in fact the Court never found any limits which 20 were judicially enforceable. In practice the Court entrusted the 21 determination of limitations to the treaty-making power itself. 18See Geofroy v. Riggs. 133 U.S. 258 (1890), 267. ^ Reid v. Covert, 354 U.S. 1 (1957) at 17. Also by implication in Wilson v. Girard, 354 U.S. 524 (1957), at 530. The Court avoided reaching the embarrassing constitutional question in the earlier case of U.S. v. Guy W. Capps, Inc., 346 U.S. 884 (1955). Other cases previously asserting judicial review over treaties include: Doe v. Braden, 16 How. 636 (1853), 657 and Geofroy v. Riggs, 133 U.S. 258 (1890), 266-67. See other cases collected herein Ch. IV, in note 33. See Robert W. Horn, "The Warren Court and the Discretionary Power of the Executive," Minnesota Law Review. XLIV (1960), 639, at 656-657. Mathews, American Foreign Relations. 556, n. 4; Boyd, North Carolina Law Review, VI, 414; McDougal and Lans, Yale Law Journal, LIV, 285-286. 21 Boyd, North Carolina Law Review, VI, 419. Holmes in Missouri v. 161 There was also growing concern that treaties and executive agree ments might be equally lawful means of accomplishing an international accord. By terms of the Constitution the treaty power was not exclu sive. Other agreements could also be concluded which would bind the 22 United States to International obligations. Some of these agreements were contemplated in the terms of treaties themselves and therefore 23 drew their authority from the treaty's authorization. For example, most of the implementing arrangements under the postwar collective security treaties took the form of executive agreements. Another source of authority for executive agreements came from Congress which empowered the President to enter into agreements prior to the time that he 24 actually undertook negotiations. In such cases as the Lend Lease Act of 1941 or the United States acceptance of the Pacific Trust Territory in 1947 or the 1948 Economic Co-operation Act with Europe, Congress enacted legislation which set out the broad outlines of American commitment but left the more specific arrangements to the executive branch to be concluded later by executive agreement. Holland had clearly noted that constitutional limitations on treaties did exist, but most critics of contemporary treaty practices emphasized the portion of the opinion which seemed to equate treaties to constitu tional amendments. In practice the Court did seem unwilling to act as the organ to determine the constitutionality of a treaty entered into by the political departments. ^StcDougal and Lans, Yale Law Journal, LIV, 187; Arthur H. Dean, "The Bricker Amendment and Authority over Foreign Affairs," Foreign Affairs. XXXII (1953), 14. 23 Small and Jayson, cd., Constitution of the United States of America, 495ff. 24Ibid., 492-495. 162 A third type of agreement derived its validity from neither a treaty nor prior legislation, but was exclusively the product of the executive's authority as Commander-in-Chief and sole organ of foreign 25 affairs. It was concern over the growing use of this latter kind of execu tive agreement that became the second major factor which led to the 26 agitation for the Bricker Amendment. The "purely" executive agreement as previously noted had a long history in the United States. The Rush-Bagot accord in 1817 which limited Anglo-American armament on the Great Lakes was the earliest example of its use. In 1853 Fllmore in an agreement with Great Britain had acquired Horse Shoe Reef for the construction of a light house in the area of Niagara Falls. Secretary of State Frelinghuysen entered into an agreement with the Republic of Mexico in 1882 which gave both nations' troops the right to cross over the border in the pursuit of Indian marauders. In each of the above cases the agreement had concerned matters immediately proximate to United States boundaries. But with McKinley, Presidents began to make extensive use of executive agreements as the principal instrument in their overseas policy. 07 The 25 Wallace McClure, International Executive Agreements (New York, 1941), 363; McDougal and Lans, Yale Law Journal, LIV, 219, 244-245. 2 6 For the background and ancestry of the Bricker Amendment see McClure, International Executive Agreements, 373ff, and Philip B. Perlman, "On Amending the Treaty Power," Columbia Law Review, LII (1952), 825, at 834-835. 27Small and Jayson, eds., Constitution of the United States, 486-87. 163 armistice terminating the Spanish American War and the Boxer Indemnity Protocol were both executive agreements to which President McKinley unilaterally committed the United States. Theodore Roosevelt by execu tive agreement acquired control over Dominican customs in 1905, after failure of the Senate to approve a proposed treaty for ratification. He also settled the problem of Japanese immigration to the United States through correspondence in 1907 and 1908 known as the Gentlemen's Agree- ment--excluding the Senate from any voice in this touchy subject. Following the Open Door Notes the major Far Eastern policies--Taft- Katsura, Root-Takahira, and Lansing-Ishii agreements— were the result 28 of executive initiative. President Wilson in November, 1918 entered into a prearmistice agreement which never reached the Senate floor for debate. And while the post-Wilson return to Isolationism meant the executives were less concerned with foreign ventures, for which international accords were necessary, than with domestic affairs, this pattern was not permanent. Franklin Roosevelt in 1933 made it clear that the executive agreement was still a powerful instrument in foreign affairs. For in that year he recognized the Soviet Union and entered into the Litvinov Assign ments through that technique. Suddenly the executive agreement again took on major significance. As previously noted Roosevelt's agreement with the Soviet Govern ment resulted in the first real test case in the Supreme Court of the Plischke, Conduct of American Diplomacy, 429-430 164 scope of executive authority In this regard and the validity of his agreements. In United States v. Belmont, decided in 1937, Sutherland, whose opinion in Curtlss-Wright had broadly interpreted presidential powers, 29 once again wrote the Court's decision. He found valid, agreements based only on the authority of the President. As "the sole organ" of diplomacy for the United States he could enter into agreements of the 30 type under consideration without consulting the Senate. Five years later the Court as we have seen reaffirmed this view 31 in the case of United States v. Pink. Once again the Litvinov agreement was the subject of dispute. In that matter the United States as assignee sought to recover assets held in the United States by a nationalized Russian insurance company. The State of New York challenged the effect of the assignment on assets held in that state. The Court again noted that the president was the "sole organ of the 32 Federal Government in the field of international relations." There could be little question of his power to enter into an executive agree ment which he regarded as "necessary to effectuate the national policy." 33 His decisions were "final and conclusive on the courts." 29 301 U.S. 324 (1937). For an example of strong criticism of this opinion see Borchard, Yale Law Journal, LIV, especially at 646. 30Ibid.. 330. 31315 U.S. 203 (194 2) . 32Ibid.. 229 , 230. 33 Ibid., 230. See also Guaranty Trust Co. v. U.S., 304 U.S. 126 (1938), 143. 165 Finally, concluded Che majority A treaty is a "Law of the Land" under the supremacy clause. . . of the Constitution. Such International compacts and agreements as the Lit vinov Assignment have a similar dig nity . 34- All this set the stage for the Second World War which saw an acceleration in the use of executive agreements. As we have seen, the destroyer-bases deal, the occupation of Greenland and Iceland, the Atlantic Charter, the United Nations Declaration and the wartime con ferences all took this form. Failures at Yalta and disappointments at Potsdam contributed to the atmosphere of distrust. As one observer pointed out, "A sort of guilt by association attached to all executive 35 agreements." In some quarters fears continued to rise that the mis guided Court would--if it had not already done so--equate a treaty and an executive agreement and demonstrate the same deference to these 36 agreements as it showed treaties. They found it significant that the Court had never held an executive agreement invalid. From all this the critics constructed their second premise: treaties and executive agreements are regarded as equal in the minds of the Justices.37 .S. v. Pink. 230. See Edward S. Corwin, The President Office and Powers (rev. ed., N.Y., 1948), 228-240. ■^Borchard, Yale Law Journal. LIV, 649; Arthur E. Sutherland, Jr., "Restricting the Treaty Power," Harvard Law Review, LXV (195^> , 1305, at 1311. 36Borchard, Yale Law Journal. LIV, 629; Schubert, The Presidency in the Courts, 107; Richard C. Snyder and Edgar S. Furniss, Jr., Ameri can Foreign Policy Formulation, Principles and Programs (New York, 1954), 153. ■^McDougal and Lans, Yale Law Journal, LIV, 285-286. 166 Adding a conclusion to the major and minor premises resulted In an Interesting syllogism. A treaty can amend the Constitution. Execu tive agreements are fully equated with treaties. Therefore executive agreements can amend the Constitution. This possibility of "Government by Treaty" or even worse» government by agreement, caused a wave of alarm to pass through congressional circles. As though intended to confirm the worst fears of those who saw this whole process as an erosion of the traditional constitutional guarantees, a California court in 1950 handed down a highly controver- 38 sial decision in the case of Fuji! v. California. That decision held a state alien land law invalid on the ground that it conflicted not with the California Constitution but with the Charter of the United Nations and the Universal Declaration of Human Rights. The proponents of some constitutional change could now point to a concrete example of a treaty overriding a state constitution. Government by treaty now seemed an even more immediate possibility. Could not the Charter of the United Nations abridge the guarantees found in the national and state bills of rights? All this concern over the extraconstitutional tendency of Ameri can foreign policy, especially under the direction of Presidents Roosevelt and Truman, resulted in the introduction in the 1951 and 1952 sessions of Congress of the proposals by Senator John Bricker to amend the Constitution in such a way as to curtail presidential power to enter 38 217 P2d 481 (1950) . 167 Into treaties and executive agreements. His measure was referred to committee where an amendment took shape which would have specifically safeguarded individual and states rights against abridgment by treaty 39 or agreement. Further, it would have prohibited the use of executive agreements in lieu of treaties and provided that agreements entered into would terminate one year after the expiration of the term of the President who signed them. The Bricker proposal remained in committee until January 7, 1953. At this time Bricker introduced another resolu tion, which he claimed had the backing of two-thirds of his senatorial colleagues. The Senate Judiciary Committee conducted hearings in June 40 and favorably voted out the proposed amendment. It provided that Section 1. A provision of a treaty which conflicts with this Constitution shall not be of any force or effect Hot content with the statements of the Court asserting judicial author ity to declare any treaty unconstitutional, Bricker and his supporters intended to spell out this power. Hopefully, if the language was sufficiently specific, the Justices would see the necessity of deeds as well as words. 39 See Hearings, United States Senate Committee on the Judiciary, 82 Cong., 2^ SessT (1952), p. 2; "Senate Resolutions Proposing Restrictions on Treaty-Making Powers," 26 Dept, of State Bulletin 952 (June 16, 1952); and generally, Dean, Foreign Affairs, XXXII, 1-19; and Glendon A. Schubert, Constitutional Politics (New York, 1960) . 40 U.S. Congress, Senate Committee on the Judiciary, Hearings 83rd Cong., 1st Sess., 1953, pt. 1, 1. The proposed amendment continued: Sec. 2. A treaty shall become effective as internal law in the United States only through legis lation which would be valid in the absence of a treaty.^2 Proponents of the amendment tried by this section to remedy the situ ation arising from Holmes' decision in Missouri v. Holland. It would check any tendency toward enlarging legislative authority beyond the language of Article I of the Constitution. Further, it would do away with self-executing treaties— making approval of both houses a pre requisite for domestic effectiveness. Finally Bricker*s proposal attacked the consequences of the dicta in the Curtiss-Wright, Belmont and Pink cases. Sec. 3. Congress shall have power to regulate all executive and other agreements with any for eign power or international organ ization. All such treaties shall be subject to the limitations im- ^ posed on treaties by this article. By 19S3 the proposals for an amendment had gained enough backing that the executive arm openly joined the senatorial opponents of the measure. Secretary of State Dulles was particularly disturbed by the "which clause" in Section 2 discussed previously. To permit this limitation, he argued, would deprive the executive of anessential power in the conduct of foreign affairs and thereby cripple American diplomacy. Extended debate frustrated a vote that year. 169 By 1954 several versions had been introduced and the debate con tinued. Senator Bricker again apparently had the necessary two-thirds support in the United States Senate. Further he had the articulate and influential backing of the American Bar Association, guardian of constitutionalism in the United States, the ever vigilant American Medical Association, and the prestigious Daughters of the American Rev olution. In February a more moderate version of Bricker's proposal as amended by Senator George of Georgia came to a vote. This version dropped the "which clause" and required in its place that an inter national agreement would be of domestic effect only if affirmed by an act of Congress. This still would have made all treaties non-self-exe- cuting and given the legislators their say in any international commitment. Sixty senators supported this version while thirty-one were opposed. The Bricker amendment in its diluted form had lost by a 44 single vote. The Senator from Ohio, still sure that the treaty power must be defined more precisely and that the use of executive agreements must be limited continued to press for some amendment until his defeat for reelection in 1958. The debates over the Bricker Amendment made painfully clear the major constitutional issue in the twentieth century foreign policy of the United States. In black and white terms it was a question of 44 U.S., Congressional Record, 83rd Cong., 2d Sess., 1954, C, Pt. 2, 2358. 170 upholding the guarantees of a constitutional separation of power versus the absolute necessity of executive prerogative in American foreign policy. The amendment would have resolved the question by erecting unbreachable walls sustaining the separation of powers. That this move might complicate the machinery of foreign policy seemed less relevant to the proponents of the amendment than their concern over an untram meled executive. If a basic constitutional shift was necessary to cur- 45 tail alleged presidential abuses in foreign affairs, then so be it. The assurances of the Court that the executive was still subject to judicial review were not enough for those who demanded that the Court's authority— and duty--be spelled out in black and white. In fact, the supporters of the Bricker Amendment had the better of the constitutional argument. For despite the assurances of the executive arm and the asides of the Court, separation of powers in foreign affairs remained a theory belied by actual practice. The history of foreign affairs in America presented few instances where the legislature assumed an importance anywhere near that of the executive in the determination of policy. And the dominant theme was one of presidential determination and conduct of foreign affairs. If this had not been the Intention of the Founding Fathers it was at least the natural outcome of the powers conferred to each of the depart ments by the Constitution. The Court, aware of the historical prece dents dating from the administration of Washington, refused to admit ^McDougal and Lans, Yale Law Journal, LIV, 210; Dean, Foreign Affairs, XXXII, 5. 171 that It was powerless to reverse this precedent. But Its opinions indicated that even if it could have done so, the potential confusion that might result was not offset by the gain in constitutional "purity'1. Previous judicial decisions had confirmed that there were two consti tutions: one for wartime and another for peace. The Court's decisions now seemed also to point to separate constitutions prescribing different limits for foreign and domestic affairs. The judiciary in the Belmont and Pink cases served notice that the power producing language of Sutherland's opinion in Curtiss-Wright was virtually unlimited by constitutional considerations. In a field where expediency and necessity had required that the executive act without too much regard for constitutional niceties, the Court had 46 indicated that it would not intervene to uphold the Constitution. As this distasteful reality became more apparent, arguments against such executive Independence emerged from the academic cloisters and the hallowed halls of justice and began to be of concern to the man on the street. What in the mid-twentieth century made extraconstitutional executive power in international diplomacy seem a graver threat than it had been in the past was the realization that foreign affairs touched everyone in the nation and interjected themselves into what had in earlier times been simple domestic concerns. The executive prerogative seemed immediate where formerly it had been remote. 46 Boyd, North Carolina Law Review, VI, 433. CHAPTER IX CONCLUSIONS If there was one conception to which the Constitutional drafters were devoted above all others it was that of a separation of powers. To this end they granted powers to three distinct branches, hoping thereby to balance the fine mechanism of government in a way that would avoid tyranny. Under this broad framework of separation it was obvious that the Supreme Court of the United States had some part to play, but its role was at first shadowy and developed fully only with the passage of time. In the formative years of the new republic the individual most responsible for expanding the scope of Supreme Court power was John Marshall. He saw to it that the Court seized each available oppor tunity to consolidate its position in domestic affairs. Judicial review, which may or may not have been contemplated by the Fathers, found its way into American judicial history through the assertions in Marshall's opinions rather than through the language of the Consti tution. Marbury v. Madison was a masterpiece of judicial activism. In seeming to deny the Court's power to control discretionary powers of the President, Marshall acquired a far more significant authority; he established the principle wherein the Justices could measure 172 173 congressional legislation against the Constitution. In the midst of judicial humility and self-denial he staked out a part for the Court that would certainly make it the co-equal of the legislature and execu tive in the domestic separation of powers. At this same time, however, Marshall adopted an opposite pattern in foreign affairs. While the Court asserted and maintained the author ity of interposition in internal matters it denied the same kind of judicial authority in foreign policy questions. In place of review it chose deference. It would not pass on the constitutionality of the policy set by the executive or the legislature. One of the reasons for this difference in approach could be found in the nature of the judicial process. To the weighing of domestic legislation, the Court brought a special expertise. The legal mind, and especially that of the judge, seemed particularly well trained for passing upon the conformity of statutory enactments to the supreme law of the land as expressed in the Constitution. Judicial review could therefore be justified on the basis of a particular competency. The separation of powers emphasized this judicial talent for deliberation. In foreign affairs, however, there existed circumstances that diminished the importance of the judicial competence. International decisions were reached in a manner that often involved values notably absent from judicial stock in trade. Negotiation, bargaining, com promise, opportunism, pragmatism, a willingness to sacrifice today in exchange for a concession tomorrow, were tools of the conference table not of the court. They were techniques which a later observer noted 174 night "be irrelevant in a court of law," but which became "at times controlling in foreign affairs."^ The inportance of these procedures and their frequent employment in international affairs left the Court without rules for adjudging the constitutional acceptability of the foreign policy established by the political departments. Marshall could thus justify review in internal and abstention in external cases not on the basis of constitutional formalism, but on the real limi tations in judicial aptitude. The business of the Court was not limited to questions involving judicial review. Individuals carried suits to it which raised no constitutional question regarding the foreign policy. Instead these cases asked the Court to decide only the issue between the parties. In such cases the Justices could not pretend they lacked competency. In many cases the Court passed on the issue at stake interpreting, for example, the extent of private rights under a treaty, or the sovereignty over a specific territorial segment, or the date of the initiation or termination of war, or the rights or obligations arising out of neutrality. It could make these judgments without inquiry to the political branches of the government. But the Court followed this course only where, in the judgment of the Justices, the subject under the litigation did not affect public concerns. Once they came to the opposite conclusion the Justices acted as they did in constitutional Walter F. Dodd, "Judicially Non-Enforceable provisions of Constitutions," Selected Essays on Constitutional Law, I (1938), 355 at 395. 175 questions— they followed the path of deference rather than judicial decision. So if a treaty involved a public right--a matter upon which the government had established a policy— or if a prize case questioned a policy of neutrality rather than duties under that policy, the Court refused to intervene. This left the parties without judicial remedy. Behind this self-restraint lay a utility which recognized that 2 foreign affairs were different from exclusively internal situations. What, asked Marshall, would be the result if the executive declared a treaty meant one thing and the Court interpreted it in a different manner? Similarly, would not American relations abroad be a shambles if after the President had refused to extend recognition to a govern ment the Court proceeded to recognize it? Certainly, confusion would result. Only if the Justices consistently deferred to the policy set by the political departments could the United States be heard abroad with one rather than multiple voices. If the political departments had spoken the Court had best remain dumb even in suits which appeared to be solely between private individuals. Nor did Marshall allow the Court to oversee constitutional boundaries between the executive and legislative branches. He left the matter of separation of powers in foreign affairs between the depart ments to political and pragmatic pressures rather than to judicial policing; here power and expediency had free play. 2 Post, Political Questions, conclusion; Maurice Finkelsteln, Harvard Law Rev., XXXVII, 338; Harvard Law Rev., XXXIV, 221; Quincy Wright, Am. Pol. Sc. Rev., XV, 1. 176 To those who put great store in the value of judicial deliberation and decision making— and the Justices were themselves usually included within this group— this deference unfortunately appeared to leave for eign affairs without the benefits of the Court's wisdom. So as Supreme Courts continued to accept Marshall's conception of self-limitation, the Justices and other observers of the judicial scene looked about for explanations behind this practice. In the opinions and in traditional analyses of the Court, one recurrent rationale was that of separation of power devised along lines of talent with some areas, foreign affairs 3 being one of them, falling outside judicial competency. The important thing was that behind this facade the Justices were free to make their own policy decisions and reflect their own values. And in addition to the separation of powers explanation which presumed a constitutional division of authority into precisely delimited pigeonholes, the Court and commentators seized upon other justifications for the political questions doctrine. Taney, for instance, was con cerned with the domestic disturbances that might result from judicial intervention, the inability of the Court to collect data, the notion that some policies are best left to those more sensitive to the elec torate, and the realization that it would accomplish little to hand 4 down a decision that would in any case be ignored. 3 Dodd, Selected Essays, I, 355; Weston, Harvard Law Rev., XXXVIII, 296; Cahn, ed., Supreme Court, 43. ^C. J. Taney in Luther v. Borden, 7 How. 1 (1848), 44-45. Justice Frankfurter echoes some of Taney's views in his dissent in Baker v. Carr, 369 U.S. 186 (1963), 295. 177 In their opinions, the Justices also took note of the possible International consequence of active judicial Intervention. They realized a decision might vex the peace of nations or upset inter national comity or embarrass the conduct of foreign policy. Related to this concern for the conduct of diplomacy was a con sideration not articulated in the cases but one too real to be ignored and one that Supreme Court Justices certainly comprehended and still continue to comprehend. It is the obvious fact that in foreign affairs there is very real danger resulting from binding American diplomats too tightly with constitutional restraints. The course of their responsibilities is shaped as often by decisions in foreign capitals as Washington. Judicial refusal to consider this could provide a nice constitutional symmetry but might often result in disastrous diplomacy. Of even greater significance is the harsh reality that inter national intercourse unlike domestic affairs has a special claim to importance. The survival of the state in the world arena depends upon the success of foreign policy--a fact becoming increasingly true in the twentieth century. A discordant note unwittingly sounded by the judicial branch might unnecessarily complicate American relations abroad, or might set off a reaction that the diplomats had carefully labored to avoid. This disturbing state of affairs goes far in explaining the Court's unwillingness to hold diplomatic decisions to the same tests as it applies to most domestic policies. This realism would seem to be the key to judicial deference. 178 If we accept explanations of the political questions doctrine that ignore the essential policy-making function of the Justices we raise more problems than we solve. The Court has a disturbing tendency of destroying any pattern built on a mechanical separation of powers or on utility, it has for example used the doctrine of political questions to avoid deciding cases with which it is fully qualified to deal under any interpretation of the separation of power. Chicago Southern Air Lines v. Waterman S.S. Corp. is a case in point where the Court used the doctrine in an argumentative way which allowed it to avoid a decision which its majority felt it should not make. Within the sepa ration of powers there is considerable leeway. The Court however often fails, as it did in this case, to act in areas fully within judicial competence. On the other hand, expediency fails to explain the conduct of the Justices in areas that certainly could have been more conveniently dismissed as political--such as Dred Scott, the 1895 Income Tax Cases, the overturn of the economic legislation of the New Deal, the deseg regation decision of the '50's, the unpopular communist civil liberties cases, and the confusing apportionment decisions. The protest that these bits of judicial activism raised illustrates that the Court does not always retreat in the face of a storm. The negative consequence of application of the political questions doctrine to foreign affairs was complimented by positive judicial action in this same area. The Court's refusal to police the boundaries 179 separating legislative and executive power had the effect of enhancing the power and prestige of the presidency in diplomatic decision making. That office combined initiative and unity lacking in the legislature. Even though the legislators might protest unilateral action by the President, once he had assumed leadership in setting and executing for eign policy the Court would not intervene on behalf of the aggrieved legislature. Therefore the President, rather than Congress, was the gainer from this judicial inactivity simply because the executive and his agents presumed to exercise authority to which the legislature felt it had an independent or coordinate claim, far more often than the legis lature attempted to move onto the presidential preserve. Further, un like those erratic assertions of Congress, the President made good his claims through deeds consummated in fact* The usual result, therefore, of judicial deference to a foreign policy set by the political depart ments was the acceptance of a purely executive conception and exe cution of American diplomacy. Just as the Justices sought out justifications for the political questions doctrine, so they searched for reasons which rationalized the executive dominance resulting from judicial withdrawal. At first pro ponents of presidential prerogatives in foreign affairs pointed to the Constitution and found in its language the broad implication for execu tive control of diplomatic policy. Later cases, after articulating the principle that courts would not and could not act to reverse an executive's policies in foreign affairs, justified this on an extra- constitutional basis. The President derived his authority from a 180 source outside the Constitution and, therefore, when exercising it, was not subject to judicial review. This doctrine of extra-consti tutional plenary power provided a cloak of judicial legitimacy for unilateral executive conduct. This theoretical justification coincided with the election of a series of Presidents willing--eager--to assert their power to the fullest, and a world situation that called on them to do so. The result of this tendency toward executive policy making when combined with judicial blessing was to make executive power in the field of external affairs unstoppable. Curtiss-Wright confirmed the suspicion that there existed no tangible limitations on the President's authority in external affairs. As such it is best seen as the capstone to a combination of factors. What was really behind that case is best summarized by Edward S. Corwin. By virtue of being a single in dividual and always Johnny-on-the- spot, by virtue of the constantly recurrent pressures of crises that would not admit of delay, by virtue of certain theories of executive power. . .added to the creative pow er of aggressive personalities. . . the President has come to claim, and has often been able to make the claim good, a quite indefinite pre rogative in the sphere of foreign relations The application of the political questions doctrine to such a broad range of foreign affairs topics has resulted in protest from those Corwin, Total War, 157. 181 critics concerned about constitutional protections which they feel suffer when the Court defers to the other branches. This doctrine, they maintain, sacrifices individual liberties to national security and constitutionalism to expediency. What most concerns these critics is the "undesirable expansion" of the political questions category. They do not deny the fact that certain foreign policies established by the executive or legislature may be of such a character as ultimately to require judicial acceptance of them. But they argue the present tendency of the Court to label almost all issues touching foreign affairs as political is dangerous, and an abandonment of the courts' function. Some jurists echo these sentiments from the bench. They would allow the judiciary wider leeway in reviewing foreign policy questions. And only in those cases where the need of unity is clear and 6 the harm from dissent is obvious would they excuse judicial deference. If as Judge Learned Hand once commented, "the claims of diplomacy are not absolute," then these criticisms hit the mark.^ Where foreign affairs are peripheral the reasons for judicial self-limitation are absent. But this argument fails to take into account the judicial policy decisions which lay behind the invocation of the political question doctrine. ^See Harold J. Laski, The American Presidency, An Interpretation (New York and London, 1940) ; Louis L. Jaffe, Judicial Aspects of Foreign Relations (Cambridge, 1933); and John P. Frank, "Political Questions," in Cahn, ed., Supreme Court and Supreme Law (Bloomington, 1954). ^Quoted In Jaffe, Judicial Aspects, 77-78. 182 In establishing these policies the Court takes account of factors not formally submitted as evidence. For judicial policy making is not made in the splendid isolation of the courtroom. Justices could no more ignore the international complexities than members of the executive or legislative departments. And to the extent that they choose to apply the doctrine to questions coming before the Court, they are making a policy decision— one that emphasizes the special competence of the political departments and the unique complexities of foreign affairs. This judicial deference hardly can be attacked as undemocratic for it concedes to the popularly elected departments control over the especially sensitive area of external affairs. From an internal point of view the doctrine exhaults the branches closest to the people and hopefully most sensitive to their desires and needs. This may deny individual litigants judicial relief in particular cases, but in doing so its effect is little different from the accepted contemporary pattern of judicial restraint with regard to the vast majority of congressional enactments and administrative decisions. Therefore, the political questions doctrine, insofar as it recog nizes the greater ability of other branches to establish American foreign policy, emphasizes the limitations of the judicial method in this field. What it does is to put the responsibility for policy making in another branch--a branch that the Justices feel is best qualified to make the necessary critical decisions. In addition it encourages a picture of a nation acting and speaking abroad with unity. Such an international image hopefully furthers United States foreign policy. 183 It is only In cases where the Court, by applying the doctrine, refuses to make a decision and where the political departments have also shown no tendency to set a policy that use of the political question fails to achieve any useful purpose. Here no policy is estab lished— only a void. The doctrine of plenary presidential powers has similar policy justification. The President alone has the tools essential to the con duct of successful diplomacy. Foreign relations in the still imperfect world of the twentieth century do not lend themselves to judicial deliberation or legislative debate. Only the executive can proceed through channels sufficiently flexible and unified to meet current international exigencies. Here the Court can point to history. It is the President, not the legislators, who has dominated American foreign policy. If the people are dissatisfied their remedy is political. Let the President be hedged round by practical considerations but not by those that are judicially imposed. The tendency of the United States Supreme Court has been to leave foreign policy decisions in hands other than those of nine Justices. This kind of judicial policy making is necessary since the members of the Court have certain values which do not lend themselves to articula tion through judicial proceedings. Rather than manufacture a complex series of canons and precedents— the procedure which the Court has followed in domestic policy making--it has deferred to the political departments, trusting the wisdom of leaders selected by a mature elec torate to uphold the best interest of the nation in the turbulence of international relations. TABLE OF SUPREME COURT CASES Adger v. Alston, 15 Wall. 555 (1872). American Insurance Co. v. Canter, 1 Pet. 511 (1828) . Aptheker v. Secretary of State, 378 U.S. 500 (1964). Arrogante Barcelones. The, 7 Wheat. 496 (1822). Asakara v. Seattle, 265 U.S. 332 (1924) . Baiz, In re, 135 U.S. 403 (1890). Baker v. Carr, 369 U.S. 186 (1963). Balzac v. Puerto Rico, 258 U.S. 298 (1922). Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964). Batesville v. Kaufmann, 18 Wall. 151 (1874). Bello Corrunes, The, 6 Wheat. 152 (1821). Botiller v. Dominquez, 130 U.S. 581 (1889). Brig Alberta v. Bias Moran, 9 Cranch 359 (1815). Brown v. Dictinese, 19 How. 183 (1856) . Brown v. Hiatts, 15 Wall. 177 (1872). Bugalewitz v. Adams, 228 U.S. 585 (1913). Carlson v. Landon. 342 U.S. 524 (19 5 2). Carrol v. Greene, 92 U.S. 509 (1875) . Chae Chan Ping v. United States (Chinese Exclusion Case), 130 U.S. 581 (1889). Charlton v. Kelly, 229 U.S. 447 (1913). 184 185 Cherokee Nation v. Georgia, 5 Pet, 1 (1831). Cherokee Tobacco, The, 11 Wall. 616 (1870). Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103 (1948) . Clark v. Allen. 331 U.S. 503 (1947). Compania Espanola de Navegacion v. Navemar, 303 U.S. 68 (1938). Cooper. In re. 143 U.S. 472 (1891). Dayton v. Dulles, 357 U.S. 144 (1958). De La Croix v. Chamberlain. 12 Wheat. 599 (1827) . De Lima v. Bidwell. 182 U.S. 1 (1901) . Pivina Pastora, The, 4 Wheat. 52 (1819). Doe v. Braden. 16 How. 636 (1853). Dooley v. United States, 182 U.S. 222 (1901) . Dorr v. United States, 195 U.S. 138 (1904). Downes v. Bidwell, 182 U.S. 244 (1901) . Edye v. Robertson, 112 U.S. 580 (1884) . Ekiu v. United States, 142 U.S. 651 (1891) . Estrella, The, 4 Wheat. 298 (1819). Fanny, The, 9 Wheat. 658 (1824). Fong Yue Ting v. United States. 149 U.S. 698 (1893). Foster v. Neilson, 2 Pet. 253 (1829). Garcia v. Lee, 12 Pet. 511 (1838). Gelston v. Hoyt. 3 Wheat. 246 (1818). Geofroy v. Riggs, 133 U.S. 248 (1889) . Glass v. Sloop Betsy, 3 Dallas 6 (1794) . Gran Para, The, 7 Wheat. 471 (1822). 186 Guaranty Trust Co. v. United States. 304 U.S. 126 (1937). Harisiades v. Shaughnessy. 342 U.S. 580 (1952). Hawaii v. Manklchl. 190 U.S. 197 (1903). Head Money Cases. 112 U.S. 580 (1884). Hirabayashi v. United States. 320 U.S. 81 (1943). Hlrota v. Mac Arthur. 338 U.S. 197 (1948). Hltz, Ex parte. Ill U.S. 766 (1883) . Horner v. United States. 143 U.S. 570 (1891). Hornsby v. United States. 10 Wall. 224 (1869) . Johnson v. Elsentrager. 339 U.S. 763 (1950). Jones v. United States. 137 U.S. 202 (1890). Josefa Segunda, The, 5 Wheat. 338 (1820). Keene v. M*Donough. 8 Pet. 308 (1834). Kennett v. Chambers, 14 How. 38 (1852) . Kent v. Dulles. 357 U.S. 116 (1958). Klnsella v. Krueger, 351 U.S. 470 (1956) . Klnsella v. Singleton. 361 U.S. 234 (1960). Knauff v. Shaughnessy. 338 U.S. 537 (1950) . Korematsu v. United States. 323 U.S. 214 (1944) . La Amistad de Rues. 5 Wheat. 385 (1820). La Conception, 6 Wheat. 235 (1821). Lamar v. Brown. 92 U.S. 187 (1875) . La Nereyda. 8 Wheat. 108 (1823). Legal Tender Cases, 12 Wall. 457 (1870). Ludecke v. Watkins. 335 U.S. 160 (1948). Luther v. Borden. 7 How. 1 (1848) . McElroy v. Guagliardo, 361 U.S. 281 (1960). Mahoney v. United States. 10 Wall. 62 (1869) . Milligan. Ex parte. 4 Wall. 2 (1866) . Missouri v. Holland. 252 U.S. 416 (1920). Monte Allegre. The. 7 Wheat. 520 (1822). National City Bank v. China. 348 U.S. 356 (1955). Neagle. In re. 135 U.S. 1 (1889). Neely v. Henkel. 180 U.S. 109 (1901) . Nereide. The. 9 Cranch 388 (1815) . Nueva Anna. The. 6 Wheat. 193 (1821). Nuerstra Senora de la Caridad. The, 4 Wheat. 497 (1819) . Qetjen v. Central Leather Co., 246 U.S. 297 (19 1 8). Peru, Ex parte, 318 U.S. 578 (1943). Pesaro. The, 271 U.S. 562 (1926). Prevost v. Greneaux, 19 How. 1 (1856) . Prise Cases. 2 Black 635 (1863) . Protector. The. 12 Wall. 700 (1871). Rassmussen v. United States. 197 U.S. 516 (1905). Raymond v. Thomas. 91 U.S. 712 (1875). Reid v. Covert. 354 U.S. 1 (1957). Republic of Mexico v. Hoffman. 324 U.S. 30 (1945). Reynes v. United States, 9 How. 127 (1849). Ricaud v. American Metal Co.. 246 U.S. 304 (1918). Rose v. Himely. 4 Cranch 241 (1808). Rosenberg v. Fleuti, 374 U.S. 449 (1963). Ross. In re. 140 U.S. 453 (1891). Russian Volunteer Fleet v. United States, 282 U.S. 481 (1931). Santa Marla. The. 7 Wheat. 490 (1822). Santlsslma Trinidad. The. 7 Wheat. 283 (1822). Sapphire. The. 11 Wall. 164 (1870). Shaughnessy v. Mezei, 345 U.S. 206 (1953) . Shively v. Bowley. 152 U.S. 1 (1893) . Society for the propagation of the Gospel InForeign Parts v. New Haven. 8 Wheat. 464 (1823). Talbot v. Jansen. 3 Dallas 133 (1795) . Terlinden v. Ames. 184 U.S. 270 (1902). Texas v. White. 7 Wall. 700 (1868). Toth v. Quarles. 350 U.S. 11 (1955). Underhill v. Hernandez. 168 U.S. 250 (1897). United States V. Arredondo. 6 Pet. 691 (1832). United States V. Belmont. 301 U.S. 324 (1937). United States v . Cohen Grocery Co.. 255 U.S. 103 (1948). United States V. Curtiss-Wright Export Corp., 299 U.S. 304 United States V. Guy W. Capps, Inc.. 346 U.S. 884 (1955). United States V. Lee Yen Tai. 185 U.S. 213 (1901). United States V. Lynde, 11 Wall. 632 (1870). United States V. Old Settlers. 148 U.S. 427 (1892). United States v . Palmer, 3 Wheat. 610 (1818). United States v . Pico, 22 How. 406 (1859). Uni ted States V. Pink. 315 U.S. 203 (1942). United States v. Reynes. 9 How. 127 (1849). United States v. Rice. 4 Wheat. 246 (1819). United States v. Schooner Peggy. 1 Cranch 103 (1801). United States v. Yorba, 11 Wall. 412 (1870). Ware v. Hilton. 3 Dallas 199 (1796). Whitney v. Robertson, 124 U.S. 190 (1888) . Williams v. Suffolk Insurance Co.. 13 Pet. 415 (1839). Wilson v. Girard, 354 U.S. 524 (1957). Yamashita, In re. 327 U.S. 1 (1946). Z & F Assets Realization Corp. v. Hull, 311 U.S. 470 (1941). Zemel v. Rusk, 381 U.S. 1 (1965) . Zoconaite v. Wolf, 226 U.S. 272 (1912). BIBLIOGRAPHY PRIMARY SOURCES Adams, Charles Francis (ed.) . Memoirs of John Quincy Adams, Vol. IV. Philadelphia: J. B. 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