The Control of American Foreign Relations

Front Cover
Macmillan, 1922 - 412 pages
Excerpt from The Control of American Foreign Relations

Discussion of a Kinetic Theory of Gravitation, and II, Some New Experiments in Gravitation. By charles F. Brush.

About the Publisher

Forgotten Books publishes hundreds of thousands of rare and classic books. Find more at www.forgottenbooks.com

This book is a reproduction of an important historical work. Forgotten Books uses state-of-the-art technology to digitally reconstruct the work, preserving the original format whilst repairing imperfections present in the aged copy. In rare cases, an imperfection in the original, such as a blemish or missing page, may be replicated in our edition. We do, however, repair the vast majority of imperfections successfully; any imperfections that remain are intentionally left to preserve the state of such historical works.

 

What people are saying - Write a review

We haven't found any reviews in the usual places.

Contents

The Representative Authority under International Law
15
The President is the Representative Authority in the United States
21
ATTRIBUTES OF THE NATIONAL REPRESENTATIVE ORGAN UNDER INTERNATIONAL LAW A Sole Agency for Foreign Communication 1...
28
National Organs of Government other than the President or His Representatives May Not Communicate
30
Legislative Expressions of Opinion not of International Cognizance
33
Selfconstituted Missions Forbidden
34
Missions of de facto Governments Unofficially Received
35
President Presumed to Speak for the Nation
36
CONCLUSIVENESS OF THE ACTS AND UTTERANCES OF NATIONAL ORGANS UNDER INTERNATIONAL LAW A With Reference to the M...
38
National and State Statutes
40
B With Reference to the Making of International Agreements 24 Foreign Nations Presumed to Know the Constitution
41
Signature under Authority of the President
44
Reservations Expressly Consented to
45
Reservations Tacitly Consented to
48
Exchange of Ratifications under Authority of the President
52
Treaty Provisions ultra vires from Lack of Original Authority
53
Treaty Provisions ultra vires from Operation of Constitutional Limitations
55
Treaty Made Under Necessity
57
With Reference to the Meeting of International Responsibilities 33 United States Bound by International Law and Treaties
58
Decisions by the President
59
Decisions by Subordinates to the President
60
Decisions of International Organs Authorized by the President
61
Meeting Responsibilities Distinguished from Making Agreements
62
Interpretation of Treaties
63
Understandings do not Require Forbearance in Pressing Inter national Claims
66
CONSTITUTIONAL LIMITATIONS UPON THE FOREIGN
69
RELATIONS POWER CHAPTER V LIMITATIONS UPON STATE POWERS 40 Position of the Foreign Relations Power under Constitutional Law
71
Relation Between State and National Powers
72
Constitutional Prohibitions of State Power
73
Action of National Organs Limiting State Powers
74
PRIVATE RIGHTS AND STATES RIGHTS A Private Rights 44 Nature of Prohibitions
76
Effect upon Power to Meet International Responsibilities
78
Effect upon Power to Make International Agreements
80
Effect upon Power to Make Decisions on National Policy
82
B States Rights 48 Nature of Prohibition
86
Effect upon Power to Meet International Responsibilities
87
Effect upon Power to Make International Agreements
88
Effect upon Power to Make Decisions on National Policy
93
THE SEP ARATION OF POWERS 52 Nature of the Theory
95
Protection of Independence of Departments
96
Protection of Delegated Powers of Departments
97
Prohibition upon Exercise of Uncharacteristic Powers by any De partment
98
A Effect on the Power to Meet International Responsibilities 56 Government as a Whole Competent to Meet Responsibilities
99
Power of President and Courts to Meet Responsibilities
100
B Effect on the Power to Make International Agreements 58 Limitations upon the Government as a Whole IOI 59 Limitations Derived from Powers ...
101
The Delegation of Legislative Power
103
Congressional Delegation of Power to Make International Agree ments
105
Treaty Delegation of Power to National Organs
106
Treaty Delegation of Power to International Organs
110
Limitations Derived from Powers of the Judiciary
115
Limitations Derived from Powers of the President
119
Alleged Encroachments I 20
120
CONCLUSION ON CONSTITUTIONAL LIMITATIONS 67 Traditional Statements of Limitations upon the Treatypower
121
Most Limitations Unimportant in Practice
124
Important Limitations from Separation of Powers
125
PART IV
127
CONSTITUTION CHAPTER IX The PositioN OF THE FOREIGN RELATIONS POWER IN THE CONSTITUTIONAL SYSTEM A Source of Natio...
129
Theory of Sovereign Powers
130
Theory of National Sovereignty in Foreign Relations
131
Theory of Resultant Powers
132
B Essential Nature of the Foreign Relations Power 74 Controversy as to Nature of Foreign Relations Power
134
Foreign Relations Power not Essentially Judicial
135
Practice
136
Early Opinion
137
Practice
139
Theory of a Fourth Department Different from Either Executive or Legislative
140
Opinion of Theoretical Writers
141
British and Colonial Precedents
143
Opinion of the Constitutional Fathers
145
Functional Classification
148
The Foreign Relations Department
150
The Law of International Responsibility
151
State Power to Meet International Responsibilities
153
National Power to Meet International Responsibilities
154
Theory of Inherent Executive Power to Meet International Re sponsibilities
155
Presidents Duty to Execute the Laws
157
Power of the Courts to Meet International Responsibilities
158
Power of Congress to Meet International Responsibilities
159
Power to Meet International Responsibilities by Treaty
160
THE POWER TO MEET INTERNATIONAL RESPONSIBILI TIES THROUGH THE OBSERVANCE OF INTERNATIONAL LAW 97 Conditions F...
161
Observance of International Law by the Constitution
162
Checks upon Congressional Disregard of International Law
164
Observance of International Law by the Treatymaking Power
166
Observance of International Law by Military and Civil Services
167
Observance of International Law by the Courts
170
Courts Apply International Law and Treaties as part of the Law of the Land
171
This Principle not Applicable to Political Questions
172
This Principle not Applicable to Cases Covered by Written Law
174
THE POWER TO MEET INTERNATIONAL RESPONSIBILI TIES THROUGH THE ENFORCEMENT OF INTERNATIONAL Law 109 Due Dilige...
176
Enforcement by the States
177
Enforcement under the National Constitution
179
Offenses Against Persons Protected by International Law
180
Offenses Against Neutrality
181
Offenses Against Foreign Governments
182
Offenses Relating to International Boundaries
183
Offenses Against Treaties
184
General Empowering Statutes
186
Sufficiency of Existing Legislation for Punishing Offenses Against Foreign Governments
187
Sufficiency of Existing Legislation in Aid of Foreign Criminal Justice
189
B Enforcement by Action of the Treaty Power 123 Treaties as a Basis for Executive and Judicial Action
190
Treaties as a Basis for Congressional Action
191
Enforcement by the President 125 Enforcement by the President
192
Presidents Use of Military Forces
193
Presidents Direction of Administrative Action
194
Enforcement by the Courts 128 Early Assumptions of Common Law Criminal Jurisdiction by Fed eral Courts
196
Federal Courts have no Common Law Jurisdiction
197
Federal Courts have no Criminal Jurisdiction from Treaties Alone
198
Statutory Criminal Jurisdiction of Federal Courts
199
Admiralty Jurisdiction of Federal Courts
200
Civil Jurisdiction of Federal Courts in Cases Affecting Aliens
201
Conclusion
203
The Senate
216
The President
217
By International Political Organs
218
By National Courts
220
By International Courts
222
Power to Perform National Obligations 149 Appropriations
225
Cession of Territory
226
Guarantees and Use of Military Force
227
Participation in International Organization
228
Formal Amends in Reparation
229
THE POWER TO MAKE INTERNATIONAL AGREE MENTS 156 Power of the States to Make Agreements with Consent of Congress
230
Power of the States to Make Agreements Independently
231
Power of the National Government to Make Agreements
233
The Courts cannot make International Agreements
234
Administrative Agreements under Authority of Act of Congress
235
Administrative Agreements under Authority of Treaty
236
Independent Administrative Agreements
237
The Validity of Administrative Agreements
239
The Power to Make Military Agreements
240
Armistices and Preliminaries of Peace
241
Validity of Military Agreements
242
Power to Make Diplomatic Agreements
243
Diplomatic Agreements Settling Controversies
244
Validity of Diplomatic Agreements
245
B The Power to Make Treaties 173 The Subject Matter of Treaties
246
The Initiation of Treaties
248
The Appointment of Negotiators
249
Consent to the Ratification of Treaties
252
The Ratification of Treaties
254
The Proclamation of Treaties
255
The Power to Terminate Treaties 181 Change in Conditions
256
Conclusion of New Treaty
257
Denunciation by Congress
258
Denunciation by the Treatymaking Power
259
Legislative Abrogation
260
Conclusion
261
RECOGNITION ANNEXATION CITIZEN SHIP AND THE DETERMINATION OF Policy 189 Distinction Between Domestic and Foreign Affairs
263
State Power to Make Political Decisions in Foreign Affairs
264
National Power to Make Political Decisions in Foreign Affairs
265
A The Power to Recognize Foreign States Governments and Belligerency 192 The Power of Recognition
268
Limits of Recognition Power
269
Exclusiveness of Presidents Recognition Power
270
Claim of Congress to Recognition Power
271
B The Power to Determine National Territory and Citizenship 196 Judicial Recognition of Territorial Limits
273
Recognition of Territorial Limits by the President
274
Power of Congress to Annex Territory
275
Power of Congress to Naturalize Aliens and Establish Criteria of Citizenship
276
Power of Executive to Recognize Citizenship
277
Power to Determine Foreign Policy 202 Congressional Resolutions on Incidents in Foreign Affairs
278
President not Bound by Congressional Resolutions on Foreign Affairs
279
Congressional Declarations of General Policy
281
Power of the President to Determine Foreign Policy
282
WAR AND THE USE OF FORCE A The Power to Make War 206 The Power to Make War
284
The Recognition of War by Congress
286
The Power to Recognize War
289
211 The Power to Declare War
290
The Power to Recognize the Termination of War
291
B The Power to Use Force in Foreign Affairs 214 Diplomatic Pressure
293
Display of Force
294
Occupation and Administration of Territory
296
Capture and Destruction of Foreign Military Forces
297
Seizure and Destruction of Private Property
298
Commercial Pressure and Retaliation
301
Exclusion Expulsion and Internment of Aliens
303
Power to Employ Various Methods of Coercion
304
Purposes for which the President May Employ Force under the Constitution
305
Purposes for which the President May Employ Force under Statute
308
Conclusion
309
THE POWER TO ESTABLISH INSTRUMENTALITIES FOR CONDUCTING FOREIGN RELATIONS A Constitutional Principles 225 The Power o...
311
The Power to Create Offices and Agencies by Treaty
312
The Power of the President to Create Offices and Agencies
313
The Appointment of Officers and Agents
314
Limitations upon the Appointing Power
315
Powers of Removing and Directing Officers and Agents
316
B Application of Principles to Foreign Affairs 231 The Types of Agencies Conducting Foreign Relations
317
National Military Naval and Administrative Offices
320
Appointment of Military and Naval Officers
321
Organization of the Department of State
322
National and International Political Officers and Agents
323
Power to Determine Grades in the Foreign Service
324
Power to Determine Occasion for Appointments in Foreign Service
326
Power of President to Appoint Diplomatic Agents
328
Practice of Sending Presidential Agents
329
Controversies with Respect to Presidential Agents
330
Presidential Agent not an Officer
333
International Administrative and Judicial Agencies
334
Conclusion on Power to Conduct Foreign Relations
335
PART V
337
UNDERSTANDINGS CONCERNING THE RELATIONS OF THE INDEPENDENT ORGANS 244 Reason for Constitutional Understandings
339
A The Overlapping of Powers of Independent Departments 245 Constitutional Understanding Respecting the Overlapping of Powers
340
Concurrent Powers of President and Courts
342
Concurrent Powers of Treaty Power and Congress
344
B Cooperation of Independent Organs 249 Constitutional Understanding Respecting the Cooperation of Inde pendent Organs
346
Acts of the President
348
252 Acts of Congress
350
Obligation of the Courts
351
Obligation of the President
352
Obligation of Congress
353
Duty of the Departments to Act 257 Constitutional Understanding respecting the Establishment of Neces sary Instrumentalities
357
THE CONTROL OF FOREIGN RELATIONS IN PRACTICE 259 The Position of the President
360
Criticisms of the American System
361
Need of Popular Control in Foreign Relations
362
Need of Centralization of Authority
363
Practice in American History
364
Constitutional Changes not Necessary
368
APPENDIX A Congressional Delegation of Power to Make In ternational Agreements
375
APPENDIX B Constitutional Understandings
376
INDEX
377
V
378
1607 1795
407
Copyright

Other editions - View all

Common terms and phrases

Popular passages

Page 212 - Disputes as to the interpretation of a treaty, as to any question of international law, as to the existence of any fact which if established would constitute a breach of any international obligation, or as to the extent and nature of the reparation to be made for any such breach, are declared to be among those which are generally suitable for submission to arbitration or judicial settlement.
Page 114 - If the Council fails to reach a report which is unanimously agreed to by the members thereof, other than the Representatives of one or more of the parties to the dispute, the Members of the League reserve to themselves the right to take such action as they shall consider necessary for the maintenance of right and justice.
Page 263 - If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendation as to its settlement.
Page 271 - That it is the duty of the United States to demand, and the Government of the United States does hereby demand, that the Government of Spain at once relinquish its authority and government in the island of Cuba and withdraw its land and naval forces from Cuba and Cuban...
Page 218 - Granada, by the present stipulation, the perfect neutrality of the before-mentioned Isthmus, with the view that the free transit from the one to the other sea may not be interrupted or embarrassed in any future time while this treaty exists ; and in consequence, the United States also guarantee, in the same manner, the rights of sovereignty and property which New Granada has and possesses over the said territory.
Page 196 - ... committing, aiding, or abetting hostilities against any of the said powers, or by carrying to any of them those articles which are deemed contraband by the modern usage of nations, will not receive the protection of the United States against such punishment or forfeiture : and further, that I have given instructions to those officers, to whom it belongs, to cause prosecutions to be instituted against all persons who shall, within the cognizance of the courts of the United States, violate the...
Page 207 - Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become...
Page 21 - The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.
Page 121 - The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States.
Page 288 - The cup of forbearance had been exhausted even before the recent information from the frontier of the Del Norte. But now, after reiterated menaces, Mexico has passed the boundary of the United States, has invaded our territory and shed American blood upon the American soil.

Bibliographic information