The Constitution of the United States of America: Analysis and Interpretation Part 91

[251] McClure, 394-403; _cf._ The Const.i.tution, article IV, section 3, clause 2. When President John Adams signed a deed conveying property for a legation to the Queen of Portugal, he was informed by his Attorney General that only Congress was competent to grant away public property.

_See_ W.B. Bryan, A History of the National Capitol From Its Foundation Through the Period of the Adoption of the Organic Act, I, 328-329; 1 American State Papers, Misc., 334. _See also_ Chief Justice Hughes, for the Court, in Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288, 330 (1936).

[252] 4 State Department Bulletin, April 12, 1941, pp. 443-447.

[253] What purports to be the correct text of these agreements was published in the New York Times of March 11, 1947. The joint statement by the United States, Great Britain, and France on arms aid for the Middle East which was released by the White House on May 25, 1950 (_See_ A.P. dispatches of that date) bears the earmarks of an executive agreement. And the same may be said of the following communique issued by the North Atlantic Council at the close of its Sixth Session at Brussels on December 19, 1950.

"The North Atlantic Council acting on recommendations of the Defense Committee today completed the arrangements initiated in September last for the establishment in Europe of an integrated force under centralized control and command. This force is to be composed of contingents contributed by the partic.i.p.ating governments.

"The Council yesterday unanimously decided to ask the President of the United States to make available General of the Army Dwight D. Eisenhower to serve as Supreme Commander. Following receipt this morning of a message from the President of the United States that he had made General Eisenhower available, the Council appointed him. He will a.s.sume his command and establish his headquarters in Europe early in the New Year.

He will have the authority to train the national units a.s.signed to his command and to organize them into an effective integrated defense force.

He will be supported by an international staff drawn from the nations contributing to the force.

"The Council, desiring to simplify the structure of the North Atlantic Treaty Organization in order to make it more effective, asked the Council Deputies to initiate appropriate action. In this connection the Defense Committee, meeting separately on December 18th, had already taken action to establish a defense production board with greater powers than those of the Military Production and Supply Board which it supersedes. The new board is charged with expanding and accelerating production and with furthering the mutual use of the industrial capacities of the member nations.

"The Council also reached unanimous agreement regarding the part which Germany might a.s.sume in the common defense. The German partic.i.p.ation would strengthen the defense of Europe without altering in any way the purely defensive character of the North Atlantic Treaty Organization.

The Council invited the Governments of France, the United Kingdom and the United States to explore the matter with the Government of the German Federal Republic.

"The decisions taken and the measures contemplated have the sole purpose of maintaining and consolidating peace. The North Atlantic nations are determined to pursue this policy until peace is secure." Department of State release to the press of December 19, 1950 (No. 1247).

[254] McClure, International Executive Agreements, 38; 1 Stat. 232-239; reenacted in 1 Stat. 354, 366.

[255] McClure, 78-81; Crandall, 127-131.

[256] Crandall, 121-127.

[257] 48 Stat. 943. Section 802 of the Civil Aeronautics Act of 1938 (52 Stat. 973) "clearly antic.i.p.ates the making of agreements with foreign countries concerning civil aviation." 40 Op. Atty. Gen. 451, 452 (1946).

[258] 143 U.S. 649 (1892).

[259] Ibid. 694.

[260] 224 U.S. 583, 596 (1912).

[261] Ibid. 601.

[262] 55 Stat. 31. One specific donation was of a destroyer to the Queen of Holland, a refugee at the time in Great Britain.

[263] 42 Stat. 363, 1325, 1326-1327; extended by 43 Stat. 763.

[264] _See_ Corwin, The President, Office and Powers (3d ed.) 264 and notes.

[265] 48 Stat. 1182.

[266] McClure, 13-14.

[267] Ibid. 14.

[268] "There have been numerous instances in which the Senate has approved treaties providing for the submission of specific matters to arbitration, leaving it to the President to determine exactly the form and scope of the matter to be arbitrated and to appoint the arbitrators.

Professor J.B. Moore, in the article to which reference has already been made, enumerates thirty-nine instances in which provision has thus been made for the settlement of pecuniary claims. Twenty of these were claims against foreign governments, fourteen were claims against both governments, and five against the United States alone." Willoughby, On the Const.i.tution, I, 543.

[269] A Decade of American Foreign Policy, S. Doc. 123, 81st Cong., 1st sess., 126.

[270] A Decade of American Foreign Policy, S. Doc. 123, 81st Cong., 1st sess., 158.

[271] United States _v._ Hartwell, 6 Wall. 385, 393 (1868).

[272] 7 Op. Atty. Gen. 168 (1855).

[273] It was so a.s.sumed by Senator William Maclay. _See_ Journal of William Maclay (New York, 1890), 109-110.

[274] 5 Benton, Abridgment of the Debates of Congress, 90-91; 3 Letters and Other Writings of James Madison (Philadelphia, 1867), 350-353, 360-371.

[275] 10 Stat. 619, 623.

[276] 7 Op. Atty. Gen. 220.

[277] 35 Stat. 672; _see also_ The act of March 1, 1893, 27 Stat. 497, which purported to authorize the President to appoint amba.s.sadors in certain cases.

[278] 22 U.S.C. ---- 1-231.

[279] 11 Benton, Abridgement of the Debates of Congress, 221-222.

[280] S. Misc. Doc. 109, 50th Cong., 1st sess., 104.

[281] S. Rept. 227, 53d Cong., 2d sess., 25. At the outset of our entrance into World War I President Wilson dispatched a mission to "Petrograd," as it was then called, without nominating the Members of it to the Senate. It was headed by Mr. Elihu Root, with "the rank of amba.s.sador," while some of his a.s.sociates bore "the rank of envoy extraordinary."

[282] _See_ George Frisbie h.o.a.r, Autobiography, II, 48-51.

[283] Justice Brandeis, dissenting in Myers _v._ United States, 272 U.S.

52, 264-274 (1926).

[284] _See_ data in Corwin, The President, Office and Powers (3d ed.) 418. Congress has repeatedly designated individuals, sometimes by name, more frequently by reference to a particular office, for the performance of specified acts or for posts of a nongovernmental character; e.g., to paint a picture (Jonathan Trumbull), to lay out a town, to act as Regents of Smithsonian Inst.i.tution, to be managers of Howard Inst.i.tute, to select a site for a post office or a prison, to restore the ma.n.u.script of the Declaration of Independence, to erect a monument at Yorktown, to erect a statue of Hamilton, and so on and so forth. 42 Harvard Law Review, 426, 430-431. In his message of April 13, 1822, President Monroe stated the thesis that, "as a general principle, * * *

Congress have no right under the Const.i.tution to impose any restraint by law on the power granted to the President so as to prevent his making a free selection of proper persons for these [newly created] offices from the whole body of his fellow-citizens." Messages and Papers of the Presidents, II, 698, 701. The statement is ambiguous, but its apparent intention is to claim for the President unrestricted power in determining who are proper persons to fill newly created offices.

[285] 19 Stat. 143, 169 (1876).

[286] In Ex parte Curtis, 106 U.S. 371 (1882), Chief Justice Waite reviews early Congressional legislation regulative of conduct in office.

"The act now in question is one regulating in some particulars the conduct of certain officers and employes of the United States. It rests on the same principle as that originally pa.s.sed in 1789 at the first session of the first Congress, which makes it unlawful for certain officers of the Treasury Department to engage in the business of trade or commerce, or to own a sea vessel, or to purchase public lands or other public property, or to be concerned in the purchase or disposal of the public securities of a State, or of the United States (Rev. Stat., sect. 243); and that pa.s.sed in 1791, which makes it an offence for a clerk in the same department to carry on trade or business in the funds or debts of the States or of the United States, or in any kind of public property (id., sect. 244); and that pa.s.sed in 1812, which makes is unlawful for a judge appointed under the authority of the United States to exercise the profession of counsel or attorney, or to be engaged in the practice of the law (id., sect. 713); and that pa.s.sed in 1853, which prohibits every officer of the United States or person holding any place of trust or profit, or discharging any official function under or in connection with any executive department of the government of the United States, or under the Senate or House of Representatives, from acting as an agent or attorney for the prosecution of any claim against the United States (id., sect. 5498); and that pa.s.sed in 1863, prohibiting members of Congress from practicing in the Court of Claims (id., sect. 1058); and that pa.s.sed in 1867, punishing, by dismissal from service, an officer or employe of the government who requires or requests any workingman in a navy-yard to contribute or pay any money for political purposes (id., sect. 1546); and that pa.s.sed in 1868, prohibiting members of Congress from being interested in contracts with the United States (id., sect. 3739); and another, pa.s.sed in 1870, which provides that no officer, clerk, or employe in the government of the United States shall solicit contributions from other officers, clerks, or employes for a gift to those in a superior official position, and that no officials or [clerical superiors shall receive any gift or] present as a contribution to them from persons in government employ getting a less salary than themselves, and that no officer or clerk shall make a donation as a gift or present to any official superior (id., sect. 1784). Many others of a kindred character might be referred to, but these are enough to show what has been the practice in the Legislative Department of the Government from its organization, and, so far as we know, this is the first time the const.i.tutionality of such legislation has ever been presented for judicial determination." Ibid. 372-373.

[287] 5 U.S.C. ---- 631-642.

[288] 54 Stat. 767, 771 (1940).

[289] 330 U.S. 75 (1947).

[290] 18 U.S.C. 611.

[291] _See_ Bills Listed in Index to Digest of Public General Bills, 79th Cong., 2d sess.