Evening star., 1941-09-01
The Presidents Powers

The Presidents Powers
Opponents of the Presidents for
eign policies have charged on many
occasions that we are sacrificing
democracy at home in order to resist
the spread of dictatorship abroad.
In other words, according to this
view, the President, under the pre-
text of defending democracy, is set
ting himself up as an American
| dictator.
1t is probable that most if not all
of the extraordinary steps taken by
Mr.. Roosevelt in his executive ca
pacity have found favor in the eyes
of the majority of the people of this
country, yet it Is undeniable that
some have taken undue alarm at the
cries of "usurpation" and dictator
ship" which have gone up from the
opposition camp That being the
case, it is interesting to examine a
discussion of the constitutional
powers of the President by Edward
H. Foley, jr., general counsel for the
Treasury Department, which was
published in the August issue of the
American Bar Association Journal.
While it is not possible here to take
up all the points developed by Mr..
Foley, his examination of the dis
tinction between a treaty and an
agreement is particularly timely in
view of the charge by critics of the
President that his recent agreement
with Winston Churchill, as evidenced
by the publication of their eight
point program, was an unconstitu-
tional exercise of executive authority.
1t was in 1900, as Mr.. Foley points
out, that John Marshall said "the
President is the sole organ Of the
Nation in it's external relations, and
its sole representative in dealing
with foreign nations" More than a
century later the Supreme Court, in
the CurtiSs-W Wright case, reiterated
this view. Speaking through Justice
Sutherland, the court said 1T 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 basis for
its exercise an act of Congress, but
which, of course, like every other
governmental power, must be exer-
cised in subordination to the ap-
plicable provisions of the Constitu-
! ton"
In the interval between these two
statements number of agreements
between the President and foreign
nations-as distinguished from treat
ies-were executed. For example,
there were the Rush-Bagot Conven-
ton of 1917 between the United
States and Great Britain for the
limitation of naval armaments on
the Great Lakes, the executive
agreements between 1882 and 1896
whereby the United States and Mex
leo undertook to permit troops of
each country to cross the border Of
the other in pursuit of Indians and
the important executive agreement
providing for the Open Door in
China.
In the light of this historical back
ground it seems quite ridiculous to
assert that the eight-point state
ment agreed upon by Mr.. Roosevelt
and Mr.. Churchill was an unconsti-
tutional act on the formers part. AS
an executive agreement, not treaty,
| it was clearly within his province.
At time when the security of the
Nation is gravely threatened from
abroad, the people should be very
slow to accept any charge that the
President has exceeded his authority
in the field of foreign relations. For
there, except for a few specific re-
straints imposed by the Constitution,
his powers are almost unlimited.
And it is we'll that this should be so,
for it is manifestly impossible for
any other branch of the Govern
ment to function satisfactorily in
that field. Only the President is in
position to take the prompt and de-
cisive steps which may be dictated
by the changing tides of world
events. and it is idle to contend that
in these matters he lacks power to
act. AS Charles Evans Hughes said
in 1917, "the trainers of the Consti-
tuition did not contrive an imposing
spectacle of impotency. Self
preservation is the first law of ma
tional life and the Constitution
itself provides the necessary powers
| in order to defend and nreSerye the