49

The President’s Power in the Field of Foreign Relations

The first section of this memorandum canvasses the historical precedents that delineate the President’s 

prerogatives vis-à-vis Congress in foreign relations. These precedents tend to fall into one of two 

categories: those reflecting the Hamiltonian view that the President as Chief Executive has sole and 

unlimited authority to determine the nation’s foreign policy, and those reflecting the Madisonian 

view that Congress as the law-making body has primary authority to determine the nation’s foreign 

policy, which the President must take care to enforce.

The second section of this memorandum concludes that the power of the President to repel invasion is 

unquestioned. It would not be necessary to resolve the conflict between the Hamiltonian and 

Madisonian views in the event of an invasion, because statutes expressly provide that “whenever the 

United States shall be invaded or in imminent danger of invasion by any foreign nation,” the 

President may use the military and naval forces to repel such invasion.

The third section of this memorandum discusses the application of the Neutrality Act of 1937 to the 

Spanish Civil War and the China-Japan conflict.

November 8, 1937

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL*

I. The President as the Depositary of the Executive Power

It is important to bear in mind that we are here dealing . . . with . . .

the very delicate, plenary and exclusive power of the President as 

the sole organ of the federal government in the field of international

relations—a power which does not require as a basis for its exercise

an act of Congress . . . .—Mr. Justice Sutherland

There are two major contentions regarding the extent of the President’s power 

in the field of foreign relations:

(1) That the President, as the Chief Executive, has the sole and 

unlimited power—that his designation in the Constitution as the 

depositary of the Executive Power is, in itself, a source of power.

(2) That while the President as the Chief Executive is the sole 

spokesman of the nation in the field of foreign relations, the Congress as the law-making body may prescribe the policy to be followed, and the President in dealing with foreign nations must keep 

within that policy.

 

* Editor’s Note: Some of the citations in the version of this memorandum that was transcribed in the 

Unpublished Opinions of the Assistant Solicitor General were missing, incomplete, or incorrect. We 

have endeavored to complete and correct these citations with sources that fit the proposition in text and 

were available at the time this memorandum was written.
Supplemental Opinions of the Office of Legal Counsel in Volume 1

50

The controversy between the exponents of these two views has existed since 

the beginning of our constitutional government. It reached bitter proportions 

during Washington’s administration, with Alexander Hamilton championing the 

first position and James Madison championing the second. The occasion for their 

debate was the issuance by the President on April 22, 1793 of the proclamation of 

neutrality with respect to the war between certain nations, including Great Britain 

on the one part and France on the other. This proclamation was in direct conflict 

with the provisions of the treaty of alliance then existing between the United

States and France, and as there was strong sentiment for France in this country at 

the time, the proclamation aroused severe criticism. It was charged that the 

President had failed in his constitutional duty to “take care that the laws be 

faithfully executed,” in that he not only had failed to carry out the treaty but had 

committed the country to a policy in direct opposition to its terms.

In a series of articles signed “Pacificus,”

1 Hamilton came to the support of the 

President, justifying the action taken upon the ground that the President was the 

sole representative of the nation in its dealings with other nations, so that in this 

field no other arm of the government could interfere with or hamper his action. He 

took the position that in this field the President’s power was supreme and unlimited, pointed out that the Constitution vests in the President the Executive Power, 

while it vests in the Congress only such legislative power as is therein granted.

From this he argued that the executive power is complete except in so far as it is 

limited by the Constitution, and that the constitutional limitations must be strictly 

construed. He even inferred that the constitutional grant to the Congress of the 

power to declare war is not a limitation on the President’s right to also exercise 

this strictly executive function, but that in this respect, the power granted to the 

Congress is concurrent with the inherent power of the President as the repository 

of the Executive Power.

Madison, at the request of Jefferson,2took issue with Hamilton and in a series 

of articles signed “Helvidius”

3

advanced the second contention set out above. He 

took the position that the President’s powers, like those of the Congress, were 

strictly limited to those expressly granted by the Constitution and those necessarily 

implied therefrom, and that his duty “to take care that the laws be faithfully

executed” required him to execute all laws enacted by the Congress including any 

bearing on the subject of foreign relations. He argued that the Constitution vested 

in Congress the exclusive right to regulate foreign commerce and to declare war, 

and that this was in direct conflict with Hamilton’s views. He contended that if the 

President believed the laws as enacted by the Congress were improper or inade-

 

1 7 The Works of Alexander Hamilton 76–117 (John C. Hamilton ed., 1851).

2 7 The Works of Thomas Jefferson 436–37 (Paul Leicester Ford ed., 1904).

3 6 The Writings of James Madison 138–88 (Gaillard Hunt ed., 1906).
The President’s Power in the Field of Foreign Relations

51

quate his power was exhausted when he had convened the Congress and communicated his views to that body.

Madison twitted Hamilton with inconsistency by quoting from an earlier article 

published in The Federalist, in which Hamilton had said:

The history of human conduct does not warrant that exalted opinion 

of human virtue, which would make it wise in a nation to commit

interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of 

a magistrate created and circumstanced as would be a president of 

the United States.4

Hamilton could well have retorted that Madison, in a speech to the House of 

Representatives in 1789, upon the question of the President’s power to remove 

from office, had said:

The constitution affirms, that the executive power shall be vested 

in the president. Are there exceptions to this proposition? Yes, there

are. The constitution says that, in appointing to office, the senate 

shall be associated with the president, unless in the case of inferior 

officers, when the law shall otherwise direct. Have we a right to 

extend this exception? I believe not. If the constitution has invested 

all executive power in the president, I venture to assert, that the legislature has no right to diminish or modify his executive authority.5

It is thus apparent that neither Hamilton nor Madison, the two early exponents 

of the opposing theories, was at all times consistent in his views on the subject.

History discloses that Thomas Jefferson, likewise, was at times inconsistent. 

While Secretary of State under President Washington he wrote an opinion, at the 

request of the President, in which he said:

The transaction of business with foreign nations is Executive altogether. It belongs, then, to the head of that department, except as to 

such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.6

This statement by Jefferson has been often quoted by exponents of the Hamiltonian theory. It is to be remembered, however, that Madison’s series of articles on 

the subject were written at Jefferson’s request. Moreover, although Jefferson as 

 

4

Id. at 176 (quoting The Federalist No. 75) (emphasis added).

5 Quoted in Edward S. Corwin, The President’s Control of Foreign Relations 29 (1917).

6 3 The Writings of Thomas Jefferson 16 (Andrew A. Lipscomb & Albert Ellery Bergh eds., lib. ed. 

1903).
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President, without authority from Congress, sent the American fleet into the 

Mediterranean to wage war against Tripoli, after that fleet had engaged in a naval

battle with the Tripolitan fleet he seemingly belied his authority for his action in a 

message to Congress of December 8, 1801, in which he said:

Tripoli, the least considerable of the Barbary States, had come forward with demands unfounded either in right or in compact, and had 

permitted itself to denounce war, on our failure to comply before a 

given day. The style of the demand admitted but one answer. I sent a 

small squadron of frigates into the Mediterranean . . . with orders to 

protect our commerce against the threatened attack. . . . Our commerce in the Mediterranean was blockaded, and that of the Atlantic

in peril. . . . One of the Tripolitan cruisers having fallen in with, and 

engaged the small schooner Enterprise . . . was captured, after a 

heavy slaughter of her men . . . . Unauthorized by the constitution, 

without the sanction of Congress, to go beyond the line of defence,

the vessel being disabled from committing further hostilities, was 

liberated with its crew. The legislature will doubtless consider 

whether, by authorizing measures of offence, also, they will place 

our force on an equal footing with that of its adversaries. I communicate all material information on this subject, that in the exercise of 

the important function confided by the constitution to the legislature 

exclusively, their judgment may form itself on a knowledge and consideration of every circumstance of weight.7

Again, in the Louisiana Purchase, Jefferson acted first as only the broad theory 

of Hamilton would permit, and then left his deed to be ratified and paid for by the 

Congress. Afterwards in a letter to John Breckinridge, dated August 12, 1803, he 

declared:

The Constitution has made no provision for our holding foreign territory, still less for incorporating foreign nations into our Union. The 

executive in seizing the fugitive occurrence which so much advances 

the good of their country, have done an act beyond the Constitution. 

The Legislature in casting behind them metaphysical subtleties, and 

risking themselves like faithful servants, must ratify and pay for it, 

and throw themselves on their country for doing for them unauthorized, what we know they would have done for themselves had they 

been in a situation to do it.8

 

7

Id. at 328–29.

8 10 Writings of Thomas Jefferson, supra note 6, at 411.
The President’s Power in the Field of Foreign Relations

53

Hamilton, in an article signed “Lucius Crassus,” howsoever inconsistently with 

his own theory of the powers of the Chief Executive, caustically commented on 

both Jefferson’s action and his message in the Tripolitan affair:

The doctrine of the Message includes the strange absurdity, that 

without a declaration of war by Congress, our public force may 

destroy the life, but may not restrain the liberty, or seize the property 

of an enemy. This was exemplified in the very instance of the Tripolitan corsair. A number of her crew were slaughtered in the combat,

and after she was subdued, she was set free with the remainder. . . .

[A] perfect illustration of the unintelligible right, to take the life but

not to abridge the liberty, or capture the property of an enemy. . . .

The principle avowed in the Message, would authorize our troops to 

kill those of the invader, if they should come within reach of their 

bayonets, perhaps to drive them into the sea, and drown them; but 

not to disable them from doing harm, by the milder process of making them prisoners, and sending them into confinement. Perhaps it 

may be replied, that the same end would be answered by disarming, 

and leaving them to starve. The merit of such an argument would be

complete by adding, that should they not be famished, before the arrival of their ships with a fresh supply of arms, we might then, if 

able, disarm them a second time, and send them on board their fleet, 

to return safely home.9

The controversy has continued. From time to time it has been the occasion of 

discussion in the public press and of debate in the Congress, few administrations 

having passed without the question being raised in one form or another. Andrew 

Jackson maintained that the designation of the President as the depositary of the 

Executive Power is, in itself, a source of power. Webster denied, without qualification, that the President has any powers except those specified in the Constitution. Chancellor Kent and Justice Story adopted the Hamiltonian view; Alfred 

Conkling rejected it. The names of prominent men who have kept the discussion 

alive, some in the support of one and some of the other view, are too numerous to 

mention here. Many recent articles in the public press and some debates in the last 

session of the Congress show that the question still is one upon which there is 

much difference of opinion.

So acute did the question become during Lincoln’s administration that the 

House of Representatives in 1864 adopted a resolution declaring:

That Congress has a constitutional right to an authoritative voice in 

declaring and prescribing the foreign policy of the United States, as

 

9 7 The Works of Alexander Hamilton 747–48 (John C. Hamilton ed., 1851).
Supplemental Opinions of the Office of Legal Counsel in Volume 1

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well in the recognition of new Powers as in other matters; and it is 

the constitutional duty of the President to respect that policy not less 

in diplomatic negotiations than in the use of the national force when 

authorized by law; and the propriety of any declaration of foreign 

policy by Congress is sufficiently proved by the vote which pronounces it . . . .

10

Sharp debate was heard on the question in the Senate in 1906. While participated in by many Senators, it was chiefly between Senator Spooner of Wisconsin and 

Senator Bacon of Georgia11—Senator Spooner supporting the broad theory of the

President’s powers and Senator Bacon advocating the opposite view. Many of the 

arguments advanced are reminiscent of those of Hamilton and Madison.

Senator Spooner, in the course of his argument quoted Mr. Justice Story as 

follows:

That a power so extensive in its reach over our foreign relations 

could not be properly conferred on any other than the executive department will admit of little doubt. That it should be exclusively confined to that department without any participation of the Senate in 

the functions (that body being conjointly intrusted with the treatymaking power) is not so obvious. Probably the circumstance that in 

all foreign governments the power was exclusively confined to the 

executive department, and the utter impracticability of keeping the 

Senate constantly in session, and the suddenness of the emergencies 

which might require the action of the Government, conduced to the

establishment of the authority in its present form. It is not, indeed, a 

power likely to be abused, though it is pregnant with consequences

often involving the question of peace or war.12

Senator Spooner also quoted from Professor Pomeroy as follows:

I repeat that the Executive Department, by means of this branch 

of its power over foreign relations, holds in its keeping the safety, 

welfare, and even permanence of our internal and domestic institutions. And in wielding this power it is untrammeled by any other department of the Government; no other influence than a moral one can 

 

10 Cong. Globe, 38th Cong., 2d Sess. 65–66 (Dec. 19, 1864).

11 40 Cong. Rec. 1417–31 (Jan. 23, 1906); 40 Cong. Rec. 2125–48 (Feb. 6, 1906).

12 40 Cong. Rec. 1420 (1906) (quoting 2 Joseph Story, Commentaries on the Constitution of the 

United States § 1567 (5th ed. 1891)).
The President’s Power in the Field of Foreign Relations

55

control or curb it; its acts are political, and its responsibility is only 

political.

13

Senator Bacon, in support of the other view, said in part:

The terms upon which foreign ships shall be allowed to enter our

ports or do business with us is an important one in our foreign relations, but the power to fix and determine them is altogether with 

Congress.

. . . .

. . . It is entirely within the competency of Congress to pass a law 

that no citizen of a given country shall come to this country, that no 

goods shall be received from it, that no merchandise shall go from 

this country to it, that no letters shall come from it, that there shall be 

no intercommunication of any kind whatever. Who doubts the power

of Congress to do so?

In other words, it is within the power of Congress to absolutely 

sunder the relations between this country and any given foreign 

country. When that is said the whole thing is said; when that is said 

the whole argument is exhausted as to where rests the supreme power in foreign affairs, because the whole must include every part. If it

is within the power of Congress to absolutely sunder all relations of 

every kind, commercial, social, political, diplomatic, and of every 

other nature, it is certainly within the power of Congress to regulate 

and control every question subsidiary to that and included within it. 

Congress and not the President is supreme under the Constitution in 

the control of our foreign affairs.

. . . .

Compared to this great array of sovereign powers granted to Congress, those conferred upon the President present a most striking 

contrast. He is clothed with the great power and responsibility of the 

execution of the laws, but beyond this the only prerogative of sovereignty with which he is exclusively invested is the pardoning power, 

and even that is denied to him in cases of impeachment by the House 

and conviction by the Senate.14

 

13 Id. (quoting John Norton Pomeroy, An Introduction to the Constitutional Law of the United 

States § 672 (3d ed. 1875)).

14 40 Cong. Rec. 2132, 2134.
Supplemental Opinions of the Office of Legal Counsel in Volume 1

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The broad powers which Hamilton declared to be vested in the Chief Executive 

have been exercised to a greater or lesser degree by many of the presidents. 

Washington’s exercise of power in derogation of the treaty with France and

Jefferson’s actions in connection with the war with Tripoli and with the Louisiana 

Purchase have been noted heretofore. Other instances are the invasions of Mexico 

under Presidents Polk and Wilson; President McKinley’s agreement with England, 

France, Italy, and Germany to suppress the Boxer Revolution and the sending of a 

joint expeditionary force into the heart of China; and President Theodore Roosevelt’s action in connection with the Venezuela affair in 1901, and his armed 

assistance to Panama in its revolt against Columbia for the purpose of acquiring 

the Panama Canal Zone which he had been unable to acquire from Columbia. In 

all of these situations and in others of like character, the action taken was without 

authority from Congress, and that of Theodore Roosevelt in Panama was in direct 

conflict with the treaty with Columbia; yet in each instance the action met with the 

approval of the people and added to the prestige of the President.

In other instances Presidents have attempted to exercise similar powers without 

success. Notable examples are President Tyler’s attempt to annex Texas in 1844; 

President Grant’s attempt to annex Santo Domingo; and President Wilson’s effort 

to make the United States a party to the League of Nations. On these and other 

occasions, the attempted exercise of broad powers was not approved by the people 

and the Presidents therefore failed of their purpose.

An outstanding example of the exercise of executive power in the field of 

foreign relations is to be found in the Monroe Doctrine. First promulgated by 

President Monroe in 1823, that Doctrine has been consistently adhered to and has 

been many times restated and reasserted. As sometimes interpreted, it is broad 

enough to constitute in advance a declaration of war against any European or 

Asiatic nation that attempts to interfere in the political affairs of any independent 

government on either of the American Continents. A few writers have attempted 

to justify it under the President’s statutory authority to repel invasion or threatened

invasion, but most have treated it as a purely executive declaration of the foreign 

policy of the United States. This Doctrine, unsupported for seventy-five years by 

any act of the Congress, has come to be almost, if not entirely, as much a part of 

our fundamental law as the Constitution itself. Daniel Webster said of it:

I look upon it as a part of its treasures of reputation; and, for one, 

I intend to guard it. . . . I will neither help to erase it nor tear it out; 

nor shall it be, by any act of mine, blurred or blotted. It did honor to 

the sagacity of the government, and will not diminish that honor.

15

President Cleveland referring to it said:

 

15 Quoted in Elihu Root, The Real Monroe Doctrine, 199 N. Am. Rev. 841, 843 (1914).
The President’s Power in the Field of Foreign Relations

57

It may not have been admitted in so many words to the Code of International Law, but . . . it has its place in the Code of International 

Law as certainly and as securely as if it were specifically mentioned.16

And in 1920, in its “resolution of ratification” of the Treaty of Versailles, the 

Senate incorporated therein, among others, the following reservation:

The United States will not submit to arbitration or to inquiry by 

the assembly or by the council of the League of Nations, provided 

for in said treaty of peace, any questions which in the judgment of 

the United States depend upon or relate to its long-established policy, commonly known as the Monroe Doctrine; said doctrine is to be 

interpreted by the United States alone and is hereby declared to be 

wholly outside the jurisdiction of said League of Nations and entirely unaffected by any provision contained in the said treaty of peace 

with Germany.17

While, as has been indicated, many Presidents have asserted the right to exercise the broad powers outlined by Hamilton, other Presidents have expressly 

disavowed this right. President Buchanan’s special message to the Congress, dated

February 18, 1859, in connection with Central American affairs is an example of 

such a disavowal.18 That message called attention to the lawless conditions existing 

in Central America, to the harsh and unlawful treatment of citizens of the United 

States and to the arbitrary and unwarranted seizure and confiscation of United 

States vessels and cargoes in that section of the world. It then declared that the 

President, unlike the executives of foreign nations, was wholly without authority 

in his own right to take any action. It disavowed any right in the President, without 

authority from the Congress, to exert any force to correct conditions or to redress

the many grievous wrongs that had been, and were continuing to be, perpetrated 

against United States citizens and their property, and expressly requested the 

Congress to grant the President that right.19

What a contrast between this action and the action of other Presidents under 

similar circumstances!

The divergent views of different Presidents on the extent of the executive power are further illustrated by a comparison of statements made by Presidents 

 

16 Quoted in Theodore S. Woolsey, Monroe Doctrine Fundamentals, 199 N. Am. Rev. 833, 834–35

(1914).

17 59 Cong. Rec. 4577.

18 Special Message of the President on the Protection of the Transit Routes Across the Isthmus, in

The Messages of President Buchanan 200 (J. Buchanan Henry comp., 1888).

19 Id. at 201–02.
Supplemental Opinions of the Office of Legal Counsel in Volume 1

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Theodore Roosevelt and William Howard Taft. Referring to his action in connection with the acquisition of the Panama Canal Zone, Mr. Roosevelt said:

If I had followed traditional, conservative methods, I would have 

submitted a dignified state paper of probably two hundred pages to 

Congress and the debate on it would have been going on yet; but I 

took the Canal Zone and let Congress debate.20

Speaking in his autobiography of his action in 1905 in putting custom houses in 

Santo Domingo under American control, Mr. Roosevelt said:

The Constitution did not explicitly give me power to bring about 

the necessary agreement with Santo Domingo. But the Constitution 

did not forbid my doing what I did. I put the agreement into effect,

and I continued its execution for two years before the senate acted; 

and I would have continued it until the end of my term, if necessary,

without any action by Congress. But it was far preferable that there 

should be action by Congress, so that we might be proceeding under 

a treaty which was the law of the land and not merely by a direction 

of the Chief Executive which would lapse when that particular executive left office. I therefore did my best to get the Senate to ratify

what I had done.21

Mr. Roosevelt further said in his autobiography:

The most important factor in getting the right spirit in my Administration, next to the insistence upon courage, honesty, and a genuine

democracy of desire to serve the plain people, was my insistence upon the theory that the executive power was limited only by specific 

restrictions and prohibitions appearing in the Constitution or imposed by the Congress under its Constitutional powers. My view was 

that every executive officer, and above all every executive officer in 

high position, was a steward of the people bound actively and affirmatively to do all he could for the people, and not to content himself with the negative merit of keeping his talents undamaged in a 

napkin. I declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he 

could find some specific authorization to do it. My belief was that it 

was not only his right but his duty to do anything that the needs of 

the Nation demanded unless such action was forbidden by the Con-

 

20 Quoted in Note, Constitutional Law—Delegation of Powers—External Sovereignty, 11 Temple 

L.Q. 418, 421 n.27 (1937).

21 Theodore Roosevelt, An Autobiography 551 (1913).
The President’s Power in the Field of Foreign Relations

59

stitution or by the laws. Under this interpretation of executive power 

I did and caused to be done many things not previously done by the 

President and the heads of the departments. I did not usurp power, 

but I did greatly broaden the use of executive power. In other words, 

I acted for the public welfare, I acted for the common well-being of 

all our people, whenever and in whatever manner was necessary, unless prevented by direct constitutional or legislative prohibition. I did 

not care a rap for the mere form and show of power; I cared immensely for the use that could be made of the substance.22

Mr. Taft, on the other hand, in his book Chief Magistrate, published after his 

retirement from office, said:

The true view of the Executive functions is, as I conceive it, that 

the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and 

included within such express grant as proper and necessary to its exercise. Such specific grant must be either in the Federal Constitution

or in an act of Congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems 

to him to be in the public interest, and there is nothing in the Neagle

case and its definition of a law of the United States, or in other precedents, warranting such an inference. The grants of Executive power

are necessarily in general terms in order not to embarrass the Executive within the field of action plainly marked for him, but his jurisdiction must be justified and vindicated by affirmative constitutional

or statutory provision, or it does not exist.23

In the same book Mr. Taft, after quoting from President Roosevelt’s autobiography the passage last quoted above, makes this statement:

My judgment is that the view of . . . Mr. Roosevelt, ascribing an 

undefined residuum of power to the President[,] is an unsafe doctrine 

and that it might lead under emergencies to results of an arbitrary 

character . . . .

24

For many years the Supreme Court did not definitely take either side in the 

controversy. It did hold that in matters of foreign relations the judiciary had no 

authority, such matters being political in their nature and committed solely to the 

charge of the political authorities of the government; but it did not distinguish 

 

22 Id. at 388–89.

23 William Howard Taft, Our Chief Magistrate and His Powers 139–40 (1916).

24 Id. at 144.
Supplemental Opinions of the Office of Legal Counsel in Volume 1

60

between the Congress and the executive, nor designate which, if either, of these

two political branches of the government had the higher authority.

Commentators on the subject cite many decisions of the Supreme Court as 

tending to support the one theory or the other. However, most decisions of that 

Court relating to matters in the field of foreign affairs, when carefully examined,

involve both congressional and presidential action, and, therefore, involve some 

form of purported congressional delegation of power. Such decisions are not 

pertinent here, since the question, so far from being one of congressional delegation of power, is one of what powers the President may exercise without authority 

from Congress.

Of the decisions usually cited those in Kansas v. Colorado25 and In re Neagle26

have heretofore been most often relied upon by the exponents of the first mentioned theory, and that in Little v. Barreme27 by the exponents of the second

theory. These decisions, however, fall far short of being decisive of the question.

The decision in Kansas v. Colorado is much stressed by advocates of the Hamiltonian theory. That decision relates only to the powers of the judiciary, but in 

discussing and defining those powers the Court adopts much of the reasoning

advanced by Hamilton in connection with the executive power, especially that 

based on the difference in the language of the several constitutional grants of 

powers.

The decision in the Neagle case is also urged in support of that theory. It holds 

that the President’s duty to “take care that the laws be faithfully executed” is not 

“limited to the enforcement of acts of Congress or of treaties of the United States 

according to their express terms,” but that it includes the “rights, duties, and 

obligations growing out of the Constitution itself, our international relations, and 

all the protection implied by the nature of the Government under the Constitution[.]”28 However, this part of the decision is dictum, since the court justified the 

action taken by the President in that case under an express congressional grant of 

authority.

The decision in Little v. Barreme, on the other hand, lends some comfort to the 

advocates of the Madisonian theory. Apparently it holds that in the field of foreign 

relations if the Congress has spoken, the President is controlled by the act of that 

body and by the policy prescribed thereby; but it seems to intimate, in a dictum, 

that if the Congress has not spoken the powers of the President as the Chief 

Executive are sufficient to enable him to meet any situation that may arise.29

 

25 206 U.S. 46 (1907).

26 135 U.S. 1 (1890).

27 6 U.S. (2 Cranch) 170 (1804).

28 135 U.S. at 64.

29 6 U.S. at 177–78.
The President’s Power in the Field of Foreign Relations

61

The most recent and far reaching decision of the Supreme Court on the question is that in United States v. Curtiss-Wright Export Corp.30 In that decision, 

rendered December 21, 1936, the Court held:

The broad statement that the federal government can exercise no 

powers except those specifically enumerated in the Constitution, and 

such implied powers as are necessary and proper to carry into effect 

the enumerated powers, is categorically true only in respect of our 

internal affairs.31

It further held that the government has powers of sovereignty not granted by 

the Constitution—powers which prior to the Declaration of Independence were in 

the English crown; that these powers were wrested from the crown by the colonies

collectively and not individually; and that when so wrested from the crown they 

vested, not in the individual colonies, but in the colonies as a unit. The Court 

declared that among such powers was the power to deal with foreign nations.

The Court further held in the Curtiss-Wright case that in foreign affairs “the 

President alone has the power to speak or listen as a representative of the nation,”

being the “‘sole organ of the nation in its external relations’” and responsible only 

to the Constitution for his conduct.32 It then said:

It is important to bear in mind that we are here dealing not alone 

with an authority vested in the President by an exertion of legislative

power, but with such an authority plus the very delicate, plenary and 

exclusive power of the President as the sole organ of the federal 

government in the field of international relations—a power which 

does not require as a basis for its exercise an act of Congress, but 

which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution. It is quite apparent that if, in the maintenance of our international relations, embarrassment—perhaps serious embarrassment—is 

to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry

within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which

would not be admissible were domestic affairs alone involved.33

 

30 299 U.S. 304 (1936).

31 Id. at 315–16.

32 Id. at 319 (quoting 10 Annals of Cong. 613 (1800) (remarks of John Marshall)).

33 Id. at 319–20.
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It must be remembered, however, that the Curtiss-Wright case involved, not the 

question of the President’s power to act without congressional authority, but the 

question of his right to act under and in accord with an act of Congress. In that 

case the constitutionality of the act under which the President had proceeded was 

assailed on the ground that it delegated legislative powers to the President. Much 

of the decision is dicta, and the ratio decidendi is contained in the following 

language:

When the President is to be authorized by legislation to act in 

respect of a matter intended to affect a situation in foreign territory,

the legislator properly bears in mind the important consideration that 

the form of the President’s action—or, indeed, whether he shall act

at all—may well depend, among other things, upon the nature of the 

confidential information which he has or may thereafter receive, or 

upon the effect which his action may have upon our foreign relations. This consideration, in connection with what we have already 

said on the subject, discloses the unwisdom of requiring Congress in

this field of governmental power to lay down narrowly definite 

standards by which the President is to be governed. As this court said 

in Mackenzie v. Hare, 239 U.S. 299, 311 [(1915)], “As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse 

with other countries. We should hesitate long before limiting or embarrassing such powers.” (Italics supplied.)34

It is apparent, therefore, that the case leaves much of the controverted question 

still unsettled. It places internal and external affairs in separate categories, and 

holds that the strict rule applied by the court to congressional delegations of power 

to the President in connection with internal affairs does not apply to such delegations of power in connection with external affairs. It intimates that the President 

might act in external affairs without congressional authority, but it leaves undecided the question whether the Congress can enact a statute in derogation of the 

President’s power in this field—for example, a mandatory embargo or neutrality 

act—which question involves the further question whether the President may, in 

dealing with foreign nations, entirely disregard a statute which the Congress has

enacted, and which prescribes a policy to be followed.

On this point the decision of the Supreme Court in Little v. Barreme is of interest, and perhaps of importance. As before stated, it intimates that when the 

Congress has not spoken the President’s powers over foreign affairs are unlimited, 

but apparently holds that when the Congress has spoken, his powers are limited to 

 

34 Id. at 321–22.
The President’s Power in the Field of Foreign Relations

63

the policy declared by the act of the Congress. Whether the Court would today 

hold this to be a correct statement of the law, or even the correct interpretation of 

its former decision, is a matter of conjecture.

In view of what has been said, it is apparent that from the beginning the question of the extent of the President’s powers has been a controversial one, and that 

the answer to the question is to be found in the statement of Chief Justice Marshall 

in Marbury v. Madison:

[T]he president is invested with certain important political powers, in 

the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own 

conscience.35

In any government, the exercise of political powers is dependent upon the will 

of the sovereign. In the United States the people constitute the sovereign, and 

therefore the successful exercise of any political power by the executive is 

dependent upon public opinion. For this reason it is doubtful if the question of the 

extent of the President’s powers ever will be definitely determined. Public opinion 

is changeable; it may favor one thing today and another tomorrow. Therefore, the 

power which the public will permit the executive to exercise will vary from time 

to time according to the circumstances involved.

Like Hamilton and Madison, the average man is never consistently either a 

strict or a liberal constructionist. He views the Constitution and the government 

merely as instruments through which he may on the one hand secure the performance of those acts of which he approves and on the other prevent the performance of those acts of which he does not approve. Therefore, if the act sought to 

be done is one of which the general public approves it will accept any construction, however liberal, which permits the act to be done; but if the act is one of 

which it does not approve, it will accept any construction, however restricted, 

which prevents the act from being done.

This was strikingly illustrated during the Wilson administration. When President Wilson, without any authority from the Congress, seized Vera Cruz, and 

when he later sent an expeditionary force into Mexico, despite criticism in many 

quarters, the public generally approved those actions. But when later he took the 

leadership in establishing the League of Nations and in his dealings with European 

countries practically committed the United States to participation therein, public 

approval perceptibly waned and the Senate rejected the treaty. As a result thereof 

the President’s prestige was greatly impaired, with consequences injurious to his 

political influence and to his health.

It follows that a President today, in the performance of an act of which the 

general public approves, may assume and exercise a power with the approbation 

 

35 5 U.S. (1 Cranch) 137, 165–66 (1803).
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of the public; but tomorrow, in the performance of some act of which the public

does not approve, he will exercise the same or a like power at his peril.

The question must be considered realistically. It is essentially practical and 

does not admit of a legalistic treatment that fails to take into account human nature 

in the individual and in the mass. If it be shocking to legal concept to conclude 

that a President at one time under the Constitution has the power to do an act in 

respect of foreign relations, and that the same or another President under the same 

Constitution has not the power to do such an act at another time, the trouble is not 

with the conclusion but with the concept. History corroborates the conclusion, 

while at the same time overturning any legal theory on the subject that does not 

accord with experience. Even when Conkling was bitterly attacking President 

Johnson for assuming unwarranted executive power he said:

It is not like the assumption of a questionable power from good 

motives and for beneficent ends; . . . where the acquiescence of the 

nation may rightly be held a practical sanction and affirmation of the 

power.36

Presidents will continue in the future to draw their executive power respecting 

foreign relations from the Constitution, as they have done in the past, and to 

exercise it. When the people approve the exercise, the existence of the power 

under the Constitution will be proved; when they disapprove the exercise, the 

existence of the power under the Constitution will be disproved. In this sphere, 

indeed, “The event is a great teacher.” The theory of Hamilton and the theory of 

Madison have been debated continuously—and the argument will persist. The two 

views have not been and cannot be reconciled in the realm of logic; in the practical

world they converge. In the field of foreign relations, the Chief Executive moves 

in a zone of twilight* where he may proceed with assurance of his powers under 

the Constitution only when the people follow and approve. As said by Woodrow

Wilson:

 

36 Alfred Conkling, The Powers of the Executive Department of the Government of the United 

States 134–35 (1866) (emphasis supplied).

* Editor’s Note: Fifteen years later, Justice Robert Jackson used the same phrase—“a zone of twilight”—in his famous Steel Seizure Case concurrence, albeit in more specific reference to cases in 

which Congress has not spoken to a matter of foreign affairs but the President nevertheless determines 

to take action. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (“When the 

President acts in absence of either a congressional grant or denial of authority, he can only rely upon 

his own independent powers, but there is a zone of twilight in which he and Congress may have 

concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on 

independent presidential responsibility. In this area, any actual test of power is likely to depend on the 

imperatives of events and contemporary imponderables rather than on abstract theories of law.”). In 

1937, when Assistant Solicitor General Bell wrote this opinion, Jackson was the Assistant Attorney 

General for the Antitrust Division. In March 1938, Jackson was appointed Solicitor General; and in 

January 1940 he was appointed Attorney General of the United States.
The President’s Power in the Field of Foreign Relations

65

If he [the President] rightly interpret the national thought and boldly 

insist upon it, he is irresistible.37

II. The President’s Power to Repel Invasion

Better to be awakened by the alarm-bell than to perish in the 

flames.—Burke

Closely related to the subject discussed under Part I is the power of the President to repel invasion. That power is unquestioned. The exponents of the Hamiltonian theory contend that the power, without statutory authority, would be inherent 

in the President as the Chief Executive; but it is not necessary to rely on this view, 

since the statutes expressly provide that “whenever the United States shall be

invaded or in imminent danger of invasion by any foreign nation,” the President 

may use the military and naval forces to repel such invasion.

In the Prize Cases, the Supreme Court said:

But by the Acts of Congress . . . he is authorized to call[] out the militia and use the military and naval forces of the United States in case 

of invasion by foreign nations, and to suppress insurrection against 

the government of a State or of the United States.

If a war be made by invasion of a foreign nation, the President is 

not only authorized but bound to resist force by force. He does not 

initiate the war, but is bound to accept the challenge without waiting 

for any special legislative authority.38

In Martin v. Mott, the Supreme Court took a somewhat broader view of this 

power of the President. In that case Justice Story, speaking for the Court, said:

For the more clear and exact consideration of the subject, it may 

be necessary to refer to the constitution of the United States, and 

some of the provisions of the act of 1795. The constitution declares, 

that congress shall have power “to provide for calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions”: and also “to provide for organizing, arming and disciplining the militia, and for governing such part of them as may be 

employed in the service of the United States.” In pursuance of this 

authority, the act of 1795 has provided, “that whenever the United 

States shall be invaded, or be in imminent danger of invasion from 

 

37 Woodrow Wilson, Constitutional Government in the United States 68 (1908).

38 67 U.S. (2 Black) 635, 668 (1862).
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any foreign nation or Indian tribe, it shall be lawful for the president 

of the United States to call forth such number of the militia of the 

state or states most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to issue 

his order for that purpose to such officer or officers of the militia as 

he may think proper.” And like provisions are made for the other 

cases stated in the constitution. It has not been denied here, that the 

act of 1795 is within the constitutional authority of congress, or that 

congress may not lawfully provide for cases of imminent danger of 

invasion, as well as for cases where an invasion has actually taken

place. In our opinion, there is no ground for a doubt on this point, 

even if it had been relied on, for the power to provide for repelling 

invasions includes the power to provide against the attempt and danger of invasion, as the necessary and proper means to effectuate the 

object. One of the best means to repel invasions is to provide the 

requisite force for action, before the invader himself has reached the 

soil.

The power thus confided by congress to the president, is, doubtless, of a very high and delicate nature. A free people are naturally 

jealous of the exercise of military power; and the power to call the 

militia into actual service, is certainly felt to be one of no ordinary 

magnitude. But it is not a power which can be executed without a 

correspondent responsibility. It is, in its terms, a limited power, confined to cases of actual invasion, or of imminent danger of invasion.

If it be a limited power, the question arises, by whom is the exigency 

to be judged of and decided? Is the president the sole and exclusive 

judge whether the exigency has arisen, or is it to be considered as an 

open question, upon which every officer to whom the orders of the

president are addressed, may decide for himself, and equally open to 

be contested by every militiaman who shall refuse to obey the orders 

of the president? We are all of opinion, that the authority to decide 

whether the exigency has arisen, belongs exclusively to the president, and that his decision is conclusive upon all other persons. We

think that this construction necessarily results from the nature of the 

power itself, and from the manifest object contemplated by the act of 

congress. The power itself is to be exercised upon sudden emergencies, upon great occasions of state, and under circumstances which 

may be vital to the existence of the Union. . . .

If we look at the language of the act of 1795, every conclusion 

drawn from the nature of the power itself, is strongly fortified. The 

words are, “whenever the United States shall be invaded, or be in 
The President’s Power in the Field of Foreign Relations

67

imminent danger of invasion, &c., it shall be lawful for the president, 

&c., to call forth such number of the militia, &c., as he may judge

necessary to repel such invasion.” The power itself is confided to the 

executive of the Union, to him who is, by the constitution, “the 

commander-in-chief of the militia, when called into the actual service of the United States,” whose duty it is to “take care that the laws 

be faithfully executed,” and whose responsibility for an honest discharge of his official obligations is secured by the highest sanctions. 

He is necessarily constituted the judge of the existence of the exigency, in the first instance, and is bound to act according to his belief 

of the facts.39

The use in the statutes and decisions of the term “imminent danger of invasion”

raises another question. Assuming that the President’s power to use force against a 

foreign nation is limited to his statutory power to repel an “invasion” or an 

“imminent danger of invasion,” what constitutes an “imminent danger of invasion”? Under what circumstances may the President act, and how far may he go, 

under his authority to meet an “imminent danger of invasion”?

As mentioned in Part I of this memorandum, the Monroe Doctrine has sometimes been justified under the powers of the President to repel threatened invasions; but if this power be the sole justification for the Monroe Doctrine, how far 

may it be extended under present conditions? If at the time the Monroe Doctrine 

was announced—the day of coach by land and sail by sea—the interference of a 

foreign nation in South American affairs constituted a threat of invasion of the 

United States, what is necessary to constitute such a threat today in the world of 

the airplane and the submarine? In the light of present means of rapid transportation and destructive warfare, how far is the President justified in finding in

military preparations and activities by foreign nations threat of invasion? Do the 

military activities and demonstrations of Japan, for example, constitute a threat of 

invasion of the Philippine Islands or of Hawaii? Could there be sufficient military 

developments and demonstrations on islands in the Pacific or Atlantic or on the 

European or the Asiatic Continent to constitute such a threat?

Moreover, what does the term “invasion” embrace? Is it limited to territorial 

invasion, or does it comprehend, also, invasion of the rights of this country as a 

sovereign nation, wherever committed?

Again, attention is called to President Jefferson’s message to Congress in connection with the Tripolitan affair. Jefferson justified the action taken on the ground

that he had sent the fleet to the Mediterranean “with orders to protect our commerce against the threatened attack.”

40 Since, in the same document, he disclaimed 

 

39 25 U.S. (12 Wheat.) 19, 27–30, 31 (1827).

40 3 Writings of Thomas Jefferson, supra note 6, at 328.
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any authority to act without authority from the Congress, perhaps he deemed his 

statutory authority to repel invasion or threatened invasion as sufficient authority.

The real answer here, also, is that the determination of when there is invasion 

or imminent danger of invasion and power to deal with the subject are political 

questions which can be resolved only through the exercise of the President’s

judgment supported by the will of the people. Woodrow Wilson said:

[The President] may be both the leader of his party and the leader of 

his nation, or he may be one or the other. If he lead the nation, his

party can hardly resist him. His office is anything he has the sagacity 

and force to make it.41

And as stated by Justice Story in Martin v. Mott:

It is no answer, that such a power [the power to provide against the 

danger of invasion] may be abused, for there is no power which is 

not susceptible of abuse. The remedy for this, as well as for all other 

official misconduct, if it should occur, is to be found in the constitution itself. In a free government, the danger must be remote, since, in 

addition to the high qualities which the executive must be presumed 

to possess, of public virtue, and honest devotion to the public interests, the frequency of elections, and the watchfulness of the representatives of the nation, carry with them all the checks which can be 

useful to guard against usurpation or wanton tyranny.42

III. The President’s Position in the Far Eastern and Spanish 

Affairs as Affected by the Neutrality Act of 1937

The transaction of business with foreign nations is Executive altogether.—Jefferson

If the Hamiltonian theory of the President’s powers be accepted in its broadest 

sense, the Neutrality Act of 1937 may be treated by him as advisory only, to be put 

into effect or not at a particular time as he may determine to be for the best 

interests of the country. If the Madisonian view be adopted, however, even with 

material qualifications, the Neutrality Act binds the President and makes it his 

constitutional duty to “take care” that it is enforced.

 

41 Constitutional Government, supra note 37, at 69.

42 25 U.S. at 32.
The President’s Power in the Field of Foreign Relations

69

Since considerable misapprehension has appeared in the public press with 

respect to the effect of the Neutrality Act of 193743 upon prior existing treaties 

entered into between this country and foreign nations, it is to be observed at the 

outset that it is settled by the decisions of the Supreme Court that under the 

Constitution both treaties and acts of Congress are the supreme law of the land; 

that neither is superior to the other; and that in case of conflict, that which is later 

in date controls.44 It follows that to the extent that the Neutrality Act of 1937

conflicts with any prior treaty, the treaty is abrogated by the Act. The legislative 

history of the Act is in accord with this doctrine.

During the session at which the Joint Resolution of February 29, 193645 was 

adopted, the House Committee on Foreign Affairs had reported a resolution (H.J.

Res. 422) containing the following section:

SEC. 16. If the President shall find that any of the provisions of 

this Act, if applied, would contravene treaty provisions in force between the United States and any foreign country before such provisions shall become applicable as to such foreign country or countries, he shall enter into negotiations with the government of such 

country for the purpose of effecting such modification of the treaty 

provisions as may be necessary, and if he shall be unable to bring

about the necessary modifications, he may in his discretion, but before such provisions shall become applicable as to such foreign 

country or countries he shall give notice of termination and terminate 

the treaty in accordance with the terms thereof.

In connection therewith the Committee’s report stated:

Section 16. This section has created quite an argument in your 

committee, on the question as to whether or not any of the provisions 

of this bill would violate any treaties between the United States and 

any foreign countries. While this section provides that if the President shall find that any of the provisions of this act, if applied, would 

contravene treaty provisions in force between the United States and 

any foreign country, he may enter into negotiations with the government of such country for the purpose of effecting such modification of the treaty provisions which will be necessary, and if he shall 

be unable to bring about the necessary modifications, he may, in his

discretion, give notice of the termination of the treaty. Many of our 

 

43 50 Stat. 121.

44 See Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox Ltd., 291 U.S. 138, 160

(1934); Cook v. United States, 288 U.S. 102, 118–19 (1933); Ex Parte Webb, 225 U.S. 663, 683 

(1912); Head Money Cases, 112 U.S. 580, 597–99 (1884).

45 49 Stat. 1152.
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treaties with European countries have a provision of 1 year’s notice 

of termination. The committee is very anxious to see that no treaty 

rights are violated . . . .

46

The Committee later abandoned this more liberal resolution and reported a 

substitute resolution, which became the Joint Resolution of February 29, 1936. 

The Committee’s report47 made no explanation of the change of position but

Chairman McReynolds explained on the floor of the House that a compromise had 

been necessary.48 The Committee was accused of “retreat and surrender,” and 

“abandonment of everything that committee stood for.”

49 During the consideration 

of the substitute resolution in the House and in the Senate there was no mention of 

the question of the effect of the resolution on treaties. The Joint Resolution of 

February 29, 1936 was substantially reenacted in section 1 of the Neutrality Act of 

1937.

A. The Spanish Situation

Section 1(c) of the Neutrality Act of 1937 provides as follows:

Whenever the President shall find that a state of civil strife exists in a 

foreign state and that such civil strife is of a magnitude or is being 

conducted under such conditions that the export of arms, ammunition, or implements of war from the United States to such foreign 

state would threaten or endanger the peace of the United States, the 

President shall proclaim such fact, and it shall thereafter be unlawful 

to export, or attempt to export, or cause to be exported, arms, ammunition, or implements of war from any place in the United States to 

such foreign state, or to any neutral state for transshipment to, or for 

the use of, such foreign state.50

Acting under that provision, the President on May 5, 1937 found and proclaimed that

a state of civil strife unhappily exists in Spain and that such civil 

strife is of a magnitude and is being conducted under such conditions

that the export of arms, ammunition, or implements of war from the 

 

46 H.R. Rep. No. 74-1928, at 8 (1936).

47 H.R. Rep. No. 74-2001 (1936).

48 80 Cong. Rec. 2240 (1936).

49 Id. at 2241.

50 50 Stat. at 121–22.
The President’s Power in the Field of Foreign Relations

71

United States to Spain would threaten and endanger the peace of the 

United States . . . .

51

It is thus obvious that the President, with ample justification for his finding, 

followed, with respect to the civil strife existing in Spain, precisely the course 

which he was authorized by the Congress to take.

Under the facts any criticism of the President’s action in this situation cannot 

be directed fairly to any unwarranted assumption of power. Nor can fault be found 

properly on the ground that circumstances in Spain did not justify his finding—

everyone knows that they did, and in any event, the Congress left it to the 

President’s sole discretion to judge whether the facts in a given situation justify 

such a finding and proclamation.

For the reason stated above, any earlier treaty with Spain inconsistent with the 

Neutrality Act of 1937 was abrogated by that Act and the President’s action under 

it, to the extent of the inconsistency.

B. The Far Eastern Situation

Section 1(a) of the Neutrality Act of 1937 provides as follows:

Whenever the President shall find that there exists a state of war between, or among, two or more foreign states, the President shall proclaim such fact, and it shall thereafter be unlawful to export, or attempt to export, or cause to be exported, arms, ammunition, or 

implements of war from any place in the United States to any belligerent state named in such proclamation, or to any neutral state for 

transshipment to, or for the use of, any such belligerent state.52

The President has not yet found under this section “that there exists a state of 

war between” China and Japan. Irrespective of whether the provisions of section 1 

are mandatory, requiring the President to find the existence of a state of war when 

in fact it does exist, or discretionary, leaving it to him, when there exists a state of 

war, to determine whether and when he shall make a finding of its existence so as 

to make the Neutrality Act applicable to it, his position in not having made a 

finding that a state of war exists between China and Japan is fully justified, 

notwithstanding that to many people the existence of war in China is an accepted 

fact.

Japan has not formally declared war on China, nor has China formally declared 

war on Japan. So far has each refrained from that course, that diplomatic relations 

between the two countries have not even been severed but continue as in time of 

 

51 2 Fed. Reg. 776, 777.

52 50 Stat. at 121.
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peace, each maintaining in the country of the other an ambassador and consuls, 

thus indicating that neither conceives that war exists between them. While 

diplomatic relations are often severed before war begins, the existence of diplomatic relations after the commencement of war would be novel. Moreover, no 

neutral nation has formally recognized the existence of a state of war as between

China and Japan. Other circumstances inconsistent with a finding that there exists 

a state of war between these two nations are that the Japanese blockade is not that 

of a belligerent, being directed only against Chinese vessels, and that the United 

States and other countries continue to harbor their warships in Chinese waters, and 

to rescue and repatriate their nationals, as they could not do in case of war between 

the two nations.

Should the President find that there exists a state of war between China and 

Japan, this nation would become the first to characterize the conflict between them 

as war. Such a finding on the part of the President would have the effect of 

causing the Neutrality Act to abrogate the commerce features of the Nine Power 

Treaty—a result not lightly to be contemplated—while so long as he refrains, the 

Act and the Treaty are not in conflict and both are fully effective. Such a course 

would be tantamount to a declaration of war by this country between those two 

nations, notwithstanding that neither has formally declared war on the other and

might well cause one or both to do so, to say nothing of causing repercussions 

among the other countries of the world, and such complications as would greatly 

lessen the possibilities of a peaceful solution of the difficulties involved—

particularly through the influence of the United States. While the Neutrality Act 

does not disclose whether the President shall find that there exists a state of war 

only when there has been a formal declaration as between two nations, or also 

when a de facto state of war exists, the existing situation in the Far East is such 

that on either construction the course so far pursued by the President is sound and

within his authority under the Act for the reasons heretofore indicated.

As to whether, when there exists a state of war, the Neutrality Act is mandatory 

upon the President to find its existence, the position may be taken that the act by 

its terms leaves to the President the discretion to find or not to find the existence of 

a state of war—or at least the discretion as to when to make a finding. This, 

however, would be a strained construction and not borne out by the legislative 

history of the Act.

The President at the time he approved the Neutrality Act of 1936 indicated by 

his statement that the provisions of section 1 were too inflexible, saying:

The latter section terminates at the end of February 1936. This 

section requires further and more complete consideration between 

now and that date. Here again the objective is wholly good. It is the 

policy of this Government to avoid being drawn into wars between 

other nations, but it is a fact that no Congress and no Executive can 

foresee all possible future situations. History is filled with unfore-
The President’s Power in the Field of Foreign Relations

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seeable situations that call for some flexibility of action. It is conceivable that situations may arise in which the wholly inflexible provisions of Section 1 of this Act might have exactly the opposite effect from that which was intended. In other words, the inflexible 

provisions might drag us into war instead of keeping us out. The policy of the Government is definitely committed to the maintenance of 

peace and the avoidance of any entanglements which would lead us 

into conflict.53

Upon this phase of the matter Congressman Johnson of the House Committee 

on Foreign Affairs, in explanation of the Joint Resolution of February 29, 1936, 

made the following explanation:

Someone expressed opposition to the bill because it was not mandatory and delegated authority to the President. Five of its prohibitions are mandatory and the President has no discretion whatever, 

and only the two relating to the use of American ports by submarines 

and the travel of Americans on belligerent vessels are left to the 

President’s discretion, and even in these the delegation of discretion 

is so circumscribed that it is practically mandatory, since he is required to act if either of a number of contingencies therein mentioned should arise.54

The mandatory provisions of that Resolution were reenacted as section 1 of the 

Joint Resolution of May 1, 1937,55 without pertinent change of language. It seems 

clear, therefore, from the language of the Act and from its legislative history, that 

as to section 1(a) the Congress did not intend to leave anything to the discretion of 

the President, and did intend that the provisions of that section should be mandatory on him when it came to his knowledge that a state of war existed. The express 

granting of discretion in connection with section 1(c) emphasizes this construction.

Since the Act does not operate on a given situation until the President makes a 

finding, it always lies within his power, when there exists a state of war, so to find 

or not to find. He could not be fairly criticized, certainly, for not making such a 

finding until after the lapse of a reasonable time, under the circumstances, after the 

commencement of a state of war. In any view, he would be entitled to such a 

reasonable time to investigate, consider, come to his conclusion, and act. Should 

he delay, however, beyond such a reasonable time, he could justify his negative 

action only if the delay should meet with popular approval. Should there be, 

 

53 Quoted in Allen W. Dulles & Hamilton Fish Armstrong, Can We Be Neutral? 150 (2d ed. 1936).

54 80 Cong. Rec. 2245.

55 50 Stat. 121.
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instead, popular disapproval, his position (even if placed on the Hamiltonian view) 

would be difficult to defend. These considerations would become pressing in the

event that Japan should formally declare war on China.

Another position which has been suggested is that the Neutrality Act of 1937 

contemplates a finding that there exists a state of war only when there has been a 

formal declaration of war, and not in case of any de facto war. It is true that the 

practice of the Roman Empire was not to recognize the existence of a state of war 

until war had been formally declared; but that procedure fell into early disuse, and 

for many centuries it was the general custom not to formally declare war. The 

Supreme Court has declared that a state of war may exist without a formal 

declaration of war.56

The Second Hague Conference of 1907, in its Convention III, contains provisions looking toward reestablishment of the Roman practice:

Article 1

The contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warning, in 

the form either of a reasoned declaration of war or of an ultimatum 

with conditional declaration of war.

Article 2

The existence of a state of war must be notified to the neutral 

Powers without delay, and shall not take effect in regard to them until after the receipt of a notification, which may, however, be given 

by telegraph.57

But the effort was rendered largely nugatory by the last clause of Article 2, which 

provides:

Neutral Powers, nevertheless, cannot rely on the absence of notification if it is clearly established that they were in fact aware of the existence of a state of war.58

The modern tendency seems to be for nations not to make formal declarations 

of their wars, and the suggested construction of the Act as contemplating a finding 

 

56 The Prize Cases, 67 U.S. (2 Black) 635, 668 (1862); Bas v. Tingy (The Eliza), 4 U.S. (4 Dall.) 37, 

40–41 (1800) (opinion of Washington, J.); Miller v. United States, 78 U.S. (11 Wall.) 268, 306 (1870); 

The Pedro, 175 U.S. 354, 363 (1899).

57 Hague Convention (III) Relative to the Opening of Hostilities, Oct. 18, 1907, 36 Stat. 2259, 2271.

58 Id.
The President’s Power in the Field of Foreign Relations

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by the President only in case of formally declared war is highly technical and 

unconvincing.

A practical course which the President may see fit to follow is that set by President Wilson in connection with the arming of American merchant vessels just 

prior to our entrance into the World War. On February 25, 1917, he went before 

the Congress and asked its approval of his decision to authorize merchant ships to 

carry defensive arms and to use them in the protection of lives and property in 

their legitimate and peaceful pursuits at sea. President Wilson said in part:

No doubt I already possess that authority without special warrant 

of law, by the plain implication of my constitutional duties and powers; but I prefer in the present circumstances not to act upon general 

implication. I wish to feel that the authority and the power of the 

Congress are behind me in whatever it may become necessary for me 

to do. We are jointly the servants of the people and must act together 

and in their spirit, so far as we can divine and interpret it.59

So here, the President might submit the instant situation to the Congress in a 

message sufficiently setting forth the facts to show the serious complications 

involved and the undesirable results likely to flow from precipitate steps, together 

with an outline of such plan of action as he may wish to propose, requesting the 

Congress to cooperate with the Executive in dealing with the crisis.

Such a course would tend to abate any criticism of the President because he has 

not or does not find under section 1(a) of the Neutrality Act that there exists a state 

of war between China and Japan, and does not say why he fails to do so. It may be 

peculiarly adapted to the situation which will exist should Japan formally declare 

war on China. Should the policy outlined by the President in such a message meet 

with popular approval its purposes would be accomplished.

The law is the general will . . . .—Volney

GOLDEN W. BELL

Assistant Solicitor General

 

59 Quoted in Corwin, supra note 5, at 152.
Supplemental Opinions of the Office of Legal Counsel in Volume 1

76

APPENDIX

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