The Constitution of the United States of America: Analysis and Interpretation Part 80

Present Status of Indian Treaties

Today Indian treaties is a closed account in the Const.i.tutional Law ledger. By a rider inserted in the Indian Appropriation Act of March 3, 1871 it was provided "That hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty: _Provided, further_, that nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe."[216] Subsequently, the power of Congress to withdraw or modify tribal rights previously granted by treaty has been invariably upheld. Thus the admission of Wyoming as a State was found to abrogate, _pro tanto_, a treaty guaranteeing certain Indians the right to hunt on unoccupied lands of the United States so long as game may be found thereon and to bring hunting by the Indians within the police power of the State.[217] Similarly, statutes modifying rights of members in tribal lands,[218] granting a right of way for a railroad through lands ceded by treaty to an Indian tribe,[219] or extending the application of revenue laws respecting liquor and tobacco over Indian territories, despite an earlier treaty exemption,[220] have been sustained. When, on the other hand, definite property rights have been conferred upon individual Indians, whether by treaty or under an act of Congress, they are protected by the Const.i.tution to the same extent and in the same way as the private rights of other residents or citizens of the United States. Hence it was held that certain Indian allottees under an agreement according to which, in part consideration of their relinquishment of all their claim to tribal property, they were to receive in severalty allotments of lands which were to be nontaxable for a specified period, acquired vested rights of exemption from State taxation which were protected by the Fifth Amendment against abrogation by Congress.[221]

International Agreements Without Senate Approval

The capacity of the United States to enter into agreements with other nations is not exhausted in the treaty-making power. The Const.i.tution recognizes a distinction between "treaties" and "agreements" or "compacts," but does not indicate what the difference is; and what difference there once may have been has been seriously blurred in practice within recent decades. The President's power to enter into agreements or compacts with other governments without consulting the Senate must be referred to his powers as organ of foreign relations and as Commander in Chief. From an early date, moreover, Congress has authorized executive agreements within the field of its powers, postal agreements, trade-mark and copyright agreements, reciprocal trade agreements. Executive agreements may also stem from treaties.[222]

ROUTINE EXECUTIVE AGREEMENTS

Many types of executive agreements comprise the ordinary daily grist of the diplomatic mill. Among these are such as apply to minor territorial adjustments, boundary rectifications, the policing of boundaries, the regulation of fishing rights, private pecuniary claims against another government or its nationals, in Story's words, "the mere private rights of sovereignty."[223] Crandall lists scores of such agreements entered into with other governments by the authorization of the President.[224]

Such agreements are ordinarily directed to particular and comparatively trivial disputes and by the settlement the effect of these cease _ipso facto_ to be operative. Also there are such time-honored diplomatic devices as the "protocol" which marks a stage in the negotiation of a treaty, and the _modus vivendi_, which is designed to serve as a temporary subst.i.tute for one. Executive agreements become of const.i.tutional significance when they const.i.tute a determinative factor of future foreign policy and hence of the country's destiny. Within recent decades, in consequence particularly of our partic.i.p.ation in World War II and our immersion in the conditions of international tension which have prevailed both before and after this war, Presidents have entered into agreements with other governments some of which have approximated temporary alliances. It cannot be justly said, however, that in so doing they have acted without considerable support from precedent.

LAW-MAKING EXECUTIVE AGREEMENTS

An early instance of executive treaty-making was the agreement by which President Monroe in 1817 brought about a delimitation of armaments on the Great Lakes. The arrangement was effected by an exchange of notes, which nearly a year later was laid before the Senate with a query as to whether it was within the President's power, or whether advice and consent of the Senate were required. The Senate approved the agreement by the required two-thirds vote, and it was forthwith proclaimed by the President without there having been a formal exchange of ratifications.[225] Of a kindred type, and owing much to the President's capacity as Commander in Chief, was a series of agreements entered into with Mexico between 1882 and 1896 according each country the right to pursue marauding Indians across the common border.[226] Commenting on such an agreement, the Court remarked, a bit uncertainly: "While no act of Congress authorizes the executive department to permit the introduction of foreign troops, the power to give such permission without legislative a.s.sent was probably a.s.sumed to exist from the authority of the President as commander in chief of the military and naval forces of the United States. It may be doubted, however, whether such power could be extended to the apprehension of deserters [from foreign vessels] in the absence of positive legislation to that effect."[227] Justice Gray and three other Justices were of the opinion that such action by the President must rest upon express treaty or statute.[228]

PRESIDENT McKINLEY'S CONTRIBUTION

Notable expansion of Presidential power in this field first became manifest in the administration of President McKinley. At the outset of war with Spain the President proclaimed that the United States would consider itself bound for the duration by the last three principles of the Declaration of Paris, a course which, as Professor Wright observes, "would doubtless go far toward establishing these three principles as international law obligatory upon the United States in future wars."[229] Hostilities with Spain were brought to an end in August 1898 by an armistice the conditions of which largely determined the succeeding treaty of peace,[230] just as did the Armistice of November 11, 1918, determine in great measure the conditions of the final peace with Germany in 1918. It was also President McKinley who in 1900, relying on his own sole authority as Commander in Chief, contributed a land force of 5,000 men and a naval force to cooperate with similar contingents from other Powers to rescue the legations in Peking from the Boxers; and a year later, again without consulting either Congress or the Senate, accepted for the United States the Boxer Indemnity Protocol between China and the intervening Powers.[231] Commenting on the Peking protocol Willoughby quotes with approval the following remark: "This case is interesting, because it shows how the force of circ.u.mstances compelled us to adopt the European practice with reference to an international agreement, which, aside from the indemnity question, was almost entirely political in character. * * *, purely political treaties are, under const.i.tutional practice in Europe, usually made by the executive alone. The situation in China, however, abundantly justified President McKinley in not submitting the protocol to the Senate. The remoteness of Pekin, the jealousies between the allies, and the shifting evasive tactics of the Chinese Government, would have made impossible anything but an agreement on the spot."[232]

EXECUTIVE AGREEMENTS AFFECTING FAR EASTERN RELATIONS

It was during this period, too, that John Hay, as McKinley's Secretary of State, initiated his "Open Door" policy, by notes to Great Britain, Germany, and Russia, which were soon followed by similar notes to France, Italy and j.a.pan. These in substance asked the recipients to declare formally that they would not seek to enlarge their respective interests in China at the expense of any of the others; and all responded favorably.[233] Then in 1905 the first Roosevelt, seeking to arrive at a diplomatic understanding with j.a.pan, instigated an exchange of opinions between Secretary of War Taft, then in the Far East, and Count Katsura, amounting to a secret treaty, by which the Roosevelt administration a.s.sented to the establishment by j.a.pan of a military protectorate in Korea.[234] Three years later Secretary of State Root and the j.a.panese amba.s.sador at Washington entered into the Root-Takahira Agreement to uphold the status quo in the Pacific and maintain the principle of equal opportunity for commerce and industry in China.[235]

Meantime, in 1907, by a "Gentlemen's Agreement," the Mikado's government had agreed to curb the emigration of j.a.panese subjects to the United States, thereby relieving the Washington government from the necessity of taking action that would have cost j.a.pan loss of face. The final of this series of executive agreements touching American relations in and with the Far East was the product of President Wilson's diplomacy. This was the Lansing-Ishii Agreement, embodied in an exchange of letters dated November 2, 1917, by which the United States recognized j.a.pan's "special interests" in China, and j.a.pan a.s.sented to the principle of the Open Door in that country.[236]

THE INTERNATIONAL OBLIGATION OF EXECUTIVE AGREEMENTS

The question naturally suggests itself: What sort of obligation does an agreement of the above description impose upon the United States? The question was put to Secretary Lansing himself in 1918 by a member of the Foreign Relations Committee, as follows: "Has the so-called Lansing-Ishii Agreement any binding force on this country?" and replied that it had not; that it was simply a declaration of American policy so long as the President or State Department might choose to continue it.[237] Actually, it took the Washington Conference of 1921, two solemn treaties and an exchange of notes to get rid of it; while the "Gentlemen's Agreement," first drawn in 1907, was finally put an end to, after seventeen years, only by an act of Congress.[238] That executive agreements are sometimes cognizable by the courts was indicated earlier. The matter is further treated immediately below.

THE LITVINOV AGREEMENT OF 1933

The executive agreement attained its fullest development as an instrument of foreign policy under President Franklin D. Roosevelt, even at times threatening to replace the treaty-making power, if not formally yet actually, as a determinative element in the field of foreign policy.

Mr. Roosevelt's first important utilization of the executive agreement device took the form of an exchange of notes on November 16, 1933 with Maxim M. Litvinov, People's Commissar for Foreign Affairs, whereby American recognition was extended to the Union of Soviet Socialist Republics in consideration of certain pledges, the first of which was the promise to restrain any persons or organizations "under its direct or indirect control, * * *, from any act overt or covert liable in any way whatsoever to injure the tranquillity, prosperity, order, or security of the whole or any part of the United States, * * *"[239]

United States _v._ Belmont

The Litvinov Agreement is also noteworthy for giving rise to two cases which afforded the Court the opportunity to evaluate the executive agreement in terms of Const.i.tutional Law. The earlier of these was United States _v._ Belmont,[240] decided in 1937. The point at issue was whether a district court of the United States was free to dismiss an action by the United States, as a.s.signee of the Soviet government, for certain moneys which were once the property of a Russian metal corporation whose a.s.sets had been appropriated by the Soviet government.

The Court, speaking by Justice Sutherland, said "No." The President's act in recognizing the Soviet government, and the accompanying agreements, const.i.tuted, said the Justice, an international compact which the President, "as the sole organ" of international relations for the United States, was authorized to enter upon without consulting the Senate. Nor did State laws and policies make any difference in such a situation; for while the supremacy of treaties is established by the Const.i.tution in express terms, yet the same rule holds "in the case of all international compacts and agreements from the very fact that complete power over international affairs is in the National Government and is not and cannot be subject to any curtailment or interference on the part of the several States."[241]

United States _v._ Pink; National Supremacy

In the United States _v._ Pink,[242] decided five years later, the same course of reasoning was reiterated with added emphasis. The question here involved was whether the United States was ent.i.tled under the Executive Agreement of 1933 to recover the a.s.sets of the New York branch of a Russian insurance company. The company argued that the decrees of confiscation of the Soviet Government did not apply to its property in New York, and could not consistently with the Const.i.tution of the United States and that of New York. The Court, speaking by Justice Douglas, brushed these arguments aside. An official declaration of the Russian government itself settled the question of the extraterritorial operation of the Russian decree of nationalization and was binding on American courts. The power to remove such obstacles to full recognition as settlement of claims of our nationals was "a modest implied power of the President who is the 'sole organ of the Federal Government in the field of international relations' * * * It was the judgment of the political department that full recognition of the Soviet Government required the settlement of outstanding problems including the claims of our nationals. * * * We would usurp the executive function if we held that that decision was not final and conclusive on the courts. 'All const.i.tutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature, * * *'[243] * * * It is, of course, true that even treaties with foreign nations will be carefully construed so as not to derogate from the authority and jurisdiction of the States of this nation unless clearly necessary to effectuate the national policy.[244] But State law must yield when it is inconsistent with, or impairs the policy or provisions of, a treaty or of an international compact or agreement.[245] Then, the power of a State to refuse enforcement of rights based on foreign law which runs counter to the public policy of the form * * * must give way before the superior Federal policy evidenced by a treaty or international compact or agreement.[246] * * * The action of New York in this case amounts in substance to a rejection of a part of the policy underlying recognition by this nation of Soviet Russia. Such power is not accorded a State in our const.i.tutional system. To permit it would be to sanction a dangerous invasion of Federal authority. For it would 'imperil the amicable relations between governments and vex the peace of nations.'[247] * * *

It would tend to disturb that equilibrium in our foreign relations which the political departments of our national government has diligently endeavored to establish. * * * No State can rewrite our foreign policy to conform to its own domestic policies. Power over external affairs is not shared by the States; it is vested in the national government exclusively. It need not be so exercised as to conform to State laws or State policies, whether they be expressed in const.i.tutions, statutes, or judicial decrees. And the policies of the States become wholly irrelevant to judicial inquiry when the United States, acting within its const.i.tutional sphere, seeks enforcement of its foreign policy in the courts." And while "aliens as well as citizens are ent.i.tled to the protection of the Fifth Amendment," that amendment did not bar the Federal Government "from securing for itself and our nationals priority [against] creditors who are nationals of foreign countries and whose claims arose abroad."[248]

THE HULL-LOTHIAN AGREEMENT, 1940

The fall of France in June 1940 inspired President Roosevelt to enter the following summer into two executive agreements the total effect of which was to transform the role of the United States from one of strict neutrality toward the war then waging in Europe to one of semi-belligerency. The first of these agreements was with Canada, and provided that a Permanent Joint Board on Defense was to be set up at once by the two countries which would "consider in the broad sense the defense of the north half of the Western Hemisphere."[249] The second, and more important agreement, was the Hull-Lothian Agreement of September 2, 1940, under which, in return for the lease to it for ninety-nine years of certain sites for naval bases in the British West Atlantic, our Government handed over to the British Government fifty over-age destroyers which had been recently reconditioned and recommissioned.[250] The transaction, as justified in an opinion by the Attorney General, amounted to a claim for the President, in his capacity as Commander in Chief and organ of foreign relations, to dispose of property of the United States, although the only power to do this which the Const.i.tution mentions is that which it a.s.signs to Congress.[251]

On April 9, 1941, the State Department, in consideration of the fact that Germany had, on April 9, 1940, occupied Denmark, entered into an executive agreement with the Danish minister at Washington, whereby the United States acquired the right to occupy Greenland for the duration, for purposes of defense.[252]

WARTIME AGREEMENTS

That the post-war diplomacy of the United States has been greatly influenced by such executive agreements as those which are a.s.sociated with Cairo, Teheran, Malta, and Potsdam, is evident.[253] The Executive Agreement thus became, in an era in which the instability of international relations forbade successful efforts at treaty-making, the princ.i.p.al instrument of Presidential initiative in the field of foreign relations. Whether the United Nations Charter and the Atlantic Pact signalize the end of this era will doubtless appear in due course.

EXECUTIVE AGREEMENTS BY AUTHORIZATION OF CONGRESS

"The first known use of the executive agreement under the Const.i.tution of the United States," writes Dr. McClure, "was for the development of international communication by means of the postal service. The second Congress, in establishing the Post Office, which had theretofore been dealt with through legislation carrying it on from year to year, enacted that 'the Postmaster General may make arrangements with the Postmasters in any foreign country for the reciprocal receipt and delivery of letters and packets, through the post-offices.' It was further provided that this act, of February 20, 1792, should 'be in force for the term of two years, from the * * * first day of June next, and no longer.'"[254]

Reciprocal Trade Agreements

Under later legislation executive agreements, or what in effect were such, have been authorized by which American patents, copyrights, and trade-marks have secured protection abroad in return for like protection by the United States of similar rights of foreign origin.[255] But the most copious source of executive agreements has been legislation which provided basis for reciprocal trade agreements, with other countries.[256] The culminating act of this species was that of June 12, 1934, which provided, in part, as follows: "* * *, the President, whenever he finds as a fact that any existing duties or other import restrictions of the United States or any foreign country are unduly burdening and restricting the foreign trade of the United States and that the purpose above declared will be promoted by the means hereinafter specified, is authorized from time to time--'(1) To enter into foreign trade agreements with foreign governments or instrumentalities thereof'; and '(2) To proclaim such modifications of existing duties and other import restrictions, or such additional import restrictions, or such continuance, and for such minimum periods, of existing customs or excise treatment of any article covered by foreign trade agreements, as are required or appropriate to carry out any foreign trade agreement that the President has entered into hereunder.

No proclamation shall be made increasing or decreasing by more than 50 per centum any existing rate of duty or transferring any article between the dutiable and free lists.'"[257] This act, renewed at three-year intervals, is still in effect, and under it many trade agreements were negotiated by former Secretary of State Hull.

The Const.i.tutionality of Trade Agreements

In Field _v._ Clark,[258] decided in 1892 this type of legislation was sustained against the objection that it attempted an unconst.i.tutional delegation "of both legislative and treaty-making powers." The Court met the first objection with an extensive review of similar legislation from the inauguration of government under the Const.i.tution. The second objection it met with the court statement that, "What has been said is equally applicable to the objection that the third section of the act invests the President with treaty-making power. The Court is of opinion that the third section of the act of October 1, 1890, is not liable to the objection that it transfers legislative and treaty-making power to the President."[259] Although two Justices disagreed, the question has never been revived. However, in Altman and Co. _v._ United States,[260]

decided twenty years later, a collateral question was pa.s.sed upon. This was whether an act of Congress which gave the federal circuit courts of appeal jurisdiction of cases in which "the validity or construction of any treaty, * * *, was drawn in question" embraced a case involving a trade agreement which had been made under the sanction of the Tariff Act of 1897. Said the Court: "While it may be true that this commercial agreement, made under authority of the Tariff Act of 1897, -- 3, was not a treaty possessing the dignity of one requiring ratification by the Senate of the United States, it was an international compact, negotiated between the representatives of two sovereign nations and made in the name and on behalf of the contracting countries, and dealing with important commercial relations between the two countries, and was proclaimed by the President. If not technically a treaty requiring ratification, nevertheless it was a compact authorized by the Congress of the United States, negotiated and proclaimed under the authority of its President. We think such a compact is a treaty under the Circuit Court of Appeals Act, and, where its construction is directly involved, as it is here, there is a right of review by direct appeal to this court."[261]

The Lend-Lease Act

The most extensive delegation of authority ever made by Congress to the President to enter into executive agreements occurred within the field of the cognate powers of the two departments, the field of foreign relations; and took place at a time when war appeared to be in the offing, and was in fact only a few months away. The legislation referred to was the Lend-Lease Act of March 11, 1941[262] by which the President was empowered for something over two years--and subsequently for additional periods whenever he deemed it in the interest of the national defense to do so, to authorize "the Secretary of War, the Secretary of the Navy, or the head of any other department or agency of the Government," to manufacture in the government a.r.s.enals, factories, and shipyards, or "otherwise procure," to the extent that available funds made possible, "defense articles"--later amended to include foodstuffs and industrial products--and "sell, transfer t.i.tle to, exchange, lease, lend, or otherwise dispose of," the same to the "government of any country whose defense the President deems vital to the defense of the United States," and on any terms that he "deems satisfactory." Under this authorization the United States entered into Mutual Aid Agreements whereby the government furnished its allies in the recent war forty billions of dollars worth of munitions of war and other supplies.

PRESIDENT PLUS CONGRESS VERSUS SENATE

The partnership which has developed within recent decades between the President and Congress within the field of their cognate powers is also ill.u.s.trated by the act of February 9, 1922, creating a commission to effect agreements respecting debts owed this country by certain other governments, the resulting agreements to be approved by Congress;[263]

by the circ.u.mstances attending the drawing up in 1944 of the United Nations Relief and Rehabilitation Convention;[264] by the Joint Resolution of June 19, 1934, by which the President was authorized to accept membership for the United States in the International Labor Office.[265] It is altogether apparent in view of developments like these that the executive agreement power, especially when it is supported by Congressional legislation, today overlaps the treaty-making power.

ARBITRATION AGREEMENTS

In 1904-1905 Secretary of State John Hay negotiated a series of treaties providing for the general arbitration of international disputes. Article II of the treaty with Great Britain, for example, provided as follows: "In each individual case the High Contracting Parties, before appealing to the Permanent Court of Arbitration, shall conclude a special Agreement defining clearly the matter in dispute and the scope of the powers of the Arbitrators, and fixing the periods for the formation of the Arbitral Tribunal and the several stages of the procedure."[266] The Senate approved the British treaty by the const.i.tutional majority having, however, first amended it by subst.i.tuting the word "treaty" for "agreement." President Theodore Roosevelt, characterizing the "ratification" as equivalent to rejection, sent the treaties to repose in the archives. "As a matter of historical practice," Dr. McClure comments, "the _compromis_ under which disputes have been arbitrated include both treaties and executive agreements in goodly numbers,"[267]

a statement supported by both Willoughby and Moore.[268]