b'Proposed Amendments to Military Commission Order No. 1\nThe Secretary of Defense could, consistent with the President\xe2\x80\x99s Military Order of November 13, 2001,\nrevise Military Commission Order No. 1 so that the presiding officer would rule upon all questions\nof law (subject to the requirements of section 4(c)(3) of the Military Order regarding questions of\nadmissibility), and the other members of the commission would make findings and pronounce\nsentence.\n\nAugust 12, 2005\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nDEPARTMENT OF DEFENSE\nYou have requested our view on whether certain proposed amendments to the\nSecretary of Defense\xe2\x80\x99s Military Commission Order No. 1 (\xe2\x80\x9cMilitary Commission\nOrder\xe2\x80\x9d) are consistent with the President\xe2\x80\x99s Military Order of November 13, 2001,\n3 C.F.R. 918 (2001 Comp.) (\xe2\x80\x9cPresident\xe2\x80\x99s Military Order\xe2\x80\x9d). We have reviewed the\nproposed amendments and conclude that all of them are consistent with the\nPresident\xe2\x80\x99s Military Order.\nOne proposed change merits special discussion: It has been proposed, through\nseveral of the revisions, to amend the Military Commission Order so that (i) the\npresiding officer of a military commission would make all legal rulings but not\nvote on findings or sentence and (ii) the other members of the commission would\nvote on findings and sentence but not make any legal rulings (except on some\nquestions of admissibility). As explained below, such amendment would be\nconsistent with the President\xe2\x80\x99s Military Order.\nThe President\xe2\x80\x99s Military Order, entitled \xe2\x80\x9cDetention, Treatment, and Trial of\nCertain Non-Citizens in the War Against Terrorism,\xe2\x80\x9d provides, among other\nthings, that the Executive Branch administer trials by military commission of al\nQaeda members and other foreign individuals who have committed or supported\nacts of international terrorism. See President\xe2\x80\x99s Military Order \xc2\xa7\xc2\xa7 2(a), 4(a); see\nalso id. \xc2\xa7 7(c) (order \xe2\x80\x9cis not intended to and does not create any right, benefit, or\nprivilege, substantive or procedural, enforceable at law or equity by any party\xe2\x80\x9d);\nAir Transp. Ass\xe2\x80\x99n of Am. v. FAA, 169 F.3d 1, 8\xe2\x80\x939 (D.C. Cir. 1999) (holding that\nthere was no \xe2\x80\x9cjudicial review\xe2\x80\x9d of an executive order that expressly disclaimed\ncreating any rights, and rejecting the use of such order in seeking judicial review\nof agency action as \xe2\x80\x9can indirect\xe2\x80\x94and impermissible\xe2\x80\x94attempt to enforce private\nrights under the order\xe2\x80\x9d). The Secretary of Defense, in turn, is expressly authorized\nby that order to promulgate such \xe2\x80\x9corders and regulations\xe2\x80\x9d as \xe2\x80\x9cmay be necessary\xe2\x80\x9d\nto provide for trial by military commission. President\xe2\x80\x99s Military Order \xc2\xa7 4(b). His\norders and regulations shall \xe2\x80\x9cinclude, but not be limited to, rules for the conduct of\nthe proceedings of military commissions, including pretrial, trial, and post-trial\nprocedures, modes of proof, issuance of process, and qualifications of attorneys.\xe2\x80\x9d\nId. \xc2\xa7 4(c). In addition, the procedures adopted by the Secretary must \xe2\x80\x9cat a minimum\xe2\x80\x9d meet eight specific requirements set forth in section 4(c). Among these\n\n155\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\neight requirements, and particularly relevant here, is section 4(c)(2), which\nrequires \xe2\x80\x9ca full and fair trial, with the military commission sitting as the triers of\nboth fact and law.\xe2\x80\x9d In addition, section 4(c)(3) provides for the \xe2\x80\x9cadmission of such\nevidence as would, in the opinion of the presiding officer of the military commission (or instead, if any other member of the commission so requests at the time the\npresiding officer renders that opinion, the opinion of the commission rendered at\nthat time by a majority of the commission), have probative value to a reasonable\nperson\xe2\x80\x9d; that is, section 4(c)(3) requires that the presiding officer make rulings on\nadmissibility, subject to the override of a majority of the commission.\nPursuant to these authorities and requirements, the Secretary of Defense promulgated the Military Commission Order on March 21, 2002. That order allows for\nboth the presiding officer and all other members of the military commission\ntogether to decide questions of law or fact (subject to the special rule for questions\nof admissibility). See, e.g., Military Commission Order \xc2\xa7\xc2\xa7 5(L), 6(F).\nTo determine whether the above-described proposal, dividing authority between the presiding officer and the other members of a commission, is consistent\nwith the President\xe2\x80\x99s Military Order, the primary question is whether such division\nwould contravene the requirement of section 4(c)(2)\xe2\x80\x94that \xe2\x80\x9cthe military commission sit[] as the triers of both fact and law.\xe2\x80\x9d Although it is possible to read this\nsection to require each member of a military commission to decide on all questions\nof law and fact, in which case the proposed change would violate section 4(c)(2),\nit is also permissible to read it as merely requiring that the military commission\xe2\x80\x94\nas opposed to some other entity\xe2\x80\x94decide all questions of law and fact at trial. The\nlatter is a reasonable reading of section 4(c)(2) given its text and the context.\nThe text of section 4(c)(2) might be considered awkward in referring to \xe2\x80\x9cthe\nmilitary commission\xe2\x80\x9d (singular) as the \xe2\x80\x9ctriers\xe2\x80\x9d (plural). This construction,\nhowever, likely just reflects that the term \xe2\x80\x9cmilitary commission\xe2\x80\x9d is a collective\nnoun. It therefore \xe2\x80\x9ccan take either singular or plural verbs and subsequent\npronouns.\xe2\x80\x9d Columbia Guide to Standard American English 100 (1993). Here,\ngiven the plural \xe2\x80\x9ctriers,\xe2\x80\x9d section 4(c)(2) appears to use the term \xe2\x80\x9cmilitary commission\xe2\x80\x9d to mean the \xe2\x80\x9cmilitary commission members,\xe2\x80\x9d as individuals, rather than the\nmilitary commission as an entity. See Oxford Dictionary of English Grammar 69\n(1994) (\xe2\x80\x9cThe choice of singular or plural verb\xe2\x80\x94and corresponding pronouns and\ndeterminers\xe2\x80\x94depends on whether the group is considered as a single unit or a\ncollection of individuals.\xe2\x80\x9d); Morton S. Freeman, The Grammatical Lawyer 305\n(1979) (\xe2\x80\x9cNouns known as collective nouns may be either singular or plural,\ndepending upon whether the group is considered as a whole\xe2\x80\x94in which case\nsingulars are used\xe2\x80\x94or as individual members\xe2\x80\x94in which case plurals are used[.]\xe2\x80\x9d).\nUnder this reading of \xe2\x80\x9cmilitary commission,\xe2\x80\x9d it is true that one might conclude\nthat the word \xe2\x80\x9cboth\xe2\x80\x9d in section 4(c)(2) indicates that each member of the military\ncommission must decide all questions of fact and law. But the language is not\nunequivocal on this point, and one also could conclude that section 4(c)(2), in\nrequiring that the military commission members be \xe2\x80\x9ctriers of both fact and law,\xe2\x80\x9d\nmerely indicates that some from among the military commission members must\n\n156\n\n\x0cProposed Amendments to Military Commission Order No. 1\n\nresolve all legal or factual questions. The quoted phrase, in other words, may be\nread as ensuring that the military commission, in conducting \xe2\x80\x9ca full and fair trial,\xe2\x80\x9d\nis complete in and of itself with regard to both fact and law\xe2\x80\x94not delegating any of\nits powers as trier to any other court or tribunal. If, for example, a small firm\ncomposed of two policy experts and a lawyer were hired to brief members of\nCongress on \xe2\x80\x9cboth the facts and law\xe2\x80\x9d underlying a particular bill, it would at the\nvery least be reasonable to understand the terms of the retention as not requiring\neach of the members of the firm to master all issues, but rather as leaving the\nmembers free to divide up the responsibilities as appropriate, by, for example,\nhaving the policy experts handle the factual issues and the lawyer handle the legal\nissues. The firm would still be providing the briefing as to both types of issues.\nThus, under the most natural reading of the term \xe2\x80\x9cmilitary commission\xe2\x80\x9d as used in\nsection (4)(c)(2), together with this latter reading of the phrase \xe2\x80\x9ctriers of both fact\nand law,\xe2\x80\x9d that section may reasonably be interpreted as not barring the proposed\nchange in the Military Commission Order.\nAlternatively, and notwithstanding the plural \xe2\x80\x9ctriers,\xe2\x80\x9d section 4(c)(2) might be\nread to use \xe2\x80\x9cmilitary commission\xe2\x80\x9d to mean the military commission as an entity.\nThat sense does seem to be the more frequent usage in section 4. See President\xe2\x80\x99s\nMilitary Order \xc2\xa7 4(a) (providing that a covered individual shall \xe2\x80\x9cbe tried by\nmilitary commission for any and all offenses triable by military commission\xe2\x80\x9d),\n\xc2\xa7 4(c)(1) (providing for \xe2\x80\x9cmilitary commissions to sit at any time and any place\xe2\x80\x9d),\n\xc2\xa7 4(c)(3) (referring to the \xe2\x80\x9cpresiding officer of the military commission\xe2\x80\x9d and \xe2\x80\x9cany\nother member of the commission\xe2\x80\x9d). Under this reading, section 4(c)(2) would\nsimply require that the military commission as an entity decide in some authorized\nfashion all questions of fact or law, without specifying how the entity did so and\nthus without imposing any requirement regarding the duties of individual commission members. Thus, whatever the better reading of section 4(c)(2), it would not\nprohibit the Secretary of Defense from specifying the details for how the commission made such decisions.\nIn addition, other provisions of the President\xe2\x80\x99s Military Order further support\nthe view that not every member (or even a majority of the members) of a military\ncommission need participate in or approve every decision. Section 4(c)(3), for\nexample, distinguishes between the roles of the \xe2\x80\x9cpresiding officer\xe2\x80\x9d and \xe2\x80\x9cother\nmember[s],\xe2\x80\x9d thus expressly contemplating the separate allocation of authority\namong military commission members. And sections 4(c)(6) and (c)(7) provide for\nconviction and sentencing \xe2\x80\x9conly upon the concurrence of two-thirds of the\nmembers of the commission present at the time of the vote, a majority being\npresent.\xe2\x80\x9d Nothing in these two provisions requires that each member vote on\nfindings and sentence. To the contrary, by making clear that the military commission need not act by unanimity or with all members present, they contemplate\notherwise and, together with section 4(c)(3), reinforce our view of the permissible\nreadings of section 4(c)(2).\nAs noted above, the President\xe2\x80\x99s Military Order also expressly grants to the\nSecretary of Defense the broad authority to promulgate such \xe2\x80\x9corders and regula-\n\n157\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\ntions\xe2\x80\x9d as \xe2\x80\x9cmay be necessary\xe2\x80\x9d to \xe2\x80\x9ccarry out\xe2\x80\x9d the President\xe2\x80\x99s order to provide for\ntrial by military commission, id. \xc2\xa7 4(b), which orders and regulations shall include,\nbut are not limited to, \xe2\x80\x9crules for the conduct of the proceedings of military\ncommissions,\xe2\x80\x9d id. \xc2\xa7 4(c). See also id. \xc2\xa7 6(a) (\xe2\x80\x9c[T]he Secretary of Defense shall\nissue such orders and regulations as may be necessary to carry out any of the\nprovisions of this order.\xe2\x80\x9d). Two related points follow from this grant. First,\nbecause the President has committed to the Secretary the authority to carry out the\npresidential order requiring military commissions, the Secretary has discretion to\nfollow any reasonable interpretation of ambiguous provisions in the President\xe2\x80\x99s\norder. See Udall v. Tallman, 380 U.S. 1, 18 (1965) (agency interpretation of\npresidential orders is lawful \xe2\x80\x9cif . . . the [agency]\xe2\x80\x99s interpretation is not unreasonable, if the language of the orders bears [its] construction\xe2\x80\x9d); Kester v. Campbell,\n652 F.2d 13, 15 (9th Cir. 1981) (\xe2\x80\x9cIn light of an agency\xe2\x80\x99s presumed expertise in\ninterpreting executive orders charged to its administration,\xe2\x80\x9d the agency\xe2\x80\x99s interpretations should receive \xe2\x80\x9cgreat deference.\xe2\x80\x9d). Section 4(c)(2) is such a provision and,\nas shown, the Secretary may reasonably interpret it such that it would permit the\nproposed change in the Military Commission Order. Second, the President has\ngranted to the Secretary broad authority to specify details for the workings of the\nmilitary commission. See Letter for Raymond J. Kelly, Chairman, Railroad\nRetirement Board, from Robert W. Minor, Acting Deputy Attorney General,\nDepartment of Justice at 1 (Sept. 13, 1954) (where an executive order gave\nagencies authority to establish personnel regulations respecting national security,\nand where that order did not address a particular matter, that matter was \xe2\x80\x9cleft to the\ndiscretion of each agency\xe2\x80\x9d); cf. Chevron, U.S.A., Inc. v. Natural Res. Def. Council,\nInc., 467 U.S. 837, 843 (1984) (agency\xe2\x80\x99s power to administer a statute \xe2\x80\x9cnecessarily requires the formulation of policy and the making of rules to fill any gap left,\nimplicitly or explicitly, by Congress\xe2\x80\x9d) (internal quotation marks and citation\nomitted). Therefore, and under a reasonable reading of section 4(c)(2), the\nSecretary has authority under section 4(b) to specify particular duties for commission members to the extent that the President has not expressly done so in his order\n(as he has through the eight specific requirements in section 4(c)).\nWe therefore conclude that the Secretary of Defense could, in a manner consistent with the President\xe2\x80\x99s Military Order, revise the Military Commission Order\nas proposed so that the presiding officer would rule upon all questions of law\n(subject to the requirements of section 4(c)(3) regarding questions of admissibility) and the other members would make findings and pronounce sentence.\nC. KEVIN MARSHALL\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n158\n\n\x0c'


b'The President\xe2\x80\x99s Power in the Field of Foreign Relations\nThe first section of this memorandum canvasses the historical precedents that delineate the President\xe2\x80\x99s\nprerogatives vis-\xc3\xa0-vis Congress in foreign relations. These precedents tend to fall into one of two\ncategories: those reflecting the Hamiltonian view that the President as Chief Executive has sole and\nunlimited authority to determine the nation\xe2\x80\x99s foreign policy, and those reflecting the Madisonian\nview that Congress as the law-making body has primary authority to determine the nation\xe2\x80\x99s foreign\npolicy, which the President must take care to enforce.\nThe second section of this memorandum concludes that the power of the President to repel invasion is\nunquestioned. It would not be necessary to resolve the conflict between the Hamiltonian and\nMadisonian views in the event of an invasion, because statutes expressly provide that \xe2\x80\x9cwhenever the\nUnited States shall be invaded or in imminent danger of invasion by any foreign nation,\xe2\x80\x9d the\nPresident may use the military and naval forces to repel such invasion.\nThe third section of this memorandum discusses the application of the Neutrality Act of 1937 to the\nSpanish Civil War and the China-Japan conflict.\n\nNovember 8, 1937\n\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL*\nI. The President as the Depositary of the Executive Power\nIt is important to bear in mind that we are here dealing . . . with . . .\nthe very delicate, plenary and exclusive power of the President as\nthe sole organ of the federal government in the field of international\nrelations\xe2\x80\x94a power which does not require as a basis for its exercise\nan act of Congress . . . .\xe2\x80\x94Mr. Justice Sutherland\nThere are two major contentions regarding the extent of the President\xe2\x80\x99s power\nin the field of foreign relations:\n(1) That the President, as the Chief Executive, has the sole and\nunlimited power\xe2\x80\x94that his designation in the Constitution as the\ndepositary of the Executive Power is, in itself, a source of power.\n(2) That while the President as the Chief Executive is the sole\nspokesman 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\nwithin that policy.\n*\nEditor\xe2\x80\x99s Note: Some of the citations in the version of this memorandum that was transcribed in the\nUnpublished Opinions of the Assistant Solicitor General were missing, incomplete, or incorrect. We\nhave endeavored to complete and correct these citations with sources that fit the proposition in text and\nwere available at the time this memorandum was written.\n\n49\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nThe controversy between the exponents of these two views has existed since\nthe beginning of our constitutional government. It reached bitter proportions\nduring Washington\xe2\x80\x99s administration, with Alexander Hamilton championing the\nfirst position and James Madison championing the second. The occasion for their\ndebate was the issuance by the President on April 22, 1793 of the proclamation of\nneutrality with respect to the war between certain nations, including Great Britain\non the one part and France on the other. This proclamation was in direct conflict\nwith the provisions of the treaty of alliance then existing between the United\nStates and France, and as there was strong sentiment for France in this country at\nthe time, the proclamation aroused severe criticism. It was charged that the\nPresident had failed in his constitutional duty to \xe2\x80\x9ctake care that the laws be\nfaithfully executed,\xe2\x80\x9d in that he not only had failed to carry out the treaty but had\ncommitted the country to a policy in direct opposition to its terms.\nIn a series of articles signed \xe2\x80\x9cPacificus,\xe2\x80\x9d1 Hamilton came to the support of the\nPresident, justifying the action taken upon the ground that the President was the\nsole representative of the nation in its dealings with other nations, so that in this\nfield no other arm of the government could interfere with or hamper his action. He\ntook the position that in this field the President\xe2\x80\x99s power was supreme and unlimited, pointed out that the Constitution vests in the President the Executive Power,\nwhile it vests in the Congress only such legislative power as is therein granted.\nFrom this he argued that the executive power is complete except in so far as it is\nlimited by the Constitution, and that the constitutional limitations must be strictly\nconstrued. He even inferred that the constitutional grant to the Congress of the\npower to declare war is not a limitation on the President\xe2\x80\x99s right to also exercise\nthis strictly executive function, but that in this respect, the power granted to the\nCongress is concurrent with the inherent power of the President as the repository\nof the Executive Power.\nMadison, at the request of Jefferson, 2 took issue with Hamilton and in a series\nof articles signed \xe2\x80\x9cHelvidius\xe2\x80\x9d3 advanced the second contention set out above. He\ntook the position that the President\xe2\x80\x99s powers, like those of the Congress, were\nstrictly limited to those expressly granted by the Constitution and those necessarily\nimplied therefrom, and that his duty \xe2\x80\x9cto take care that the laws be faithfully\nexecuted\xe2\x80\x9d required him to execute all laws enacted by the Congress including any\nbearing on the subject of foreign relations. He argued that the Constitution vested\nin Congress the exclusive right to regulate foreign commerce and to declare war,\nand that this was in direct conflict with Hamilton\xe2\x80\x99s views. He contended that if the\nPresident believed the laws as enacted by the Congress were improper or inade-\n\n1\n\n7 The Works of Alexander Hamilton 76\xe2\x80\x93117 (John C. Hamilton ed., 1851).\n7 The Works of Thomas Jefferson 436\xe2\x80\x9337 (Paul Leicester Ford ed., 1904).\n3\n6 The Writings of James Madison 138\xe2\x80\x9388 (Gaillard Hunt ed., 1906).\n2\n\n50\n\n\x0cThe President\xe2\x80\x99s Power in the Field of Foreign Relations\n\nquate his power was exhausted when he had convened the Congress and communicated his views to that body.\nMadison twitted Hamilton with inconsistency by quoting from an earlier article\npublished in The Federalist, in which Hamilton had said:\nThe history of human conduct does not warrant that exalted opinion\nof human virtue, which would make it wise in a nation to commit\ninterests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of\na magistrate created and circumstanced as would be a president of\nthe United States.4\nHamilton could well have retorted that Madison, in a speech to the House of\nRepresentatives in 1789, upon the question of the President\xe2\x80\x99s power to remove\nfrom office, had said:\nThe constitution affirms, that the executive power shall be vested\nin the president. Are there exceptions to this proposition? Yes, there\nare. The constitution says that, in appointing to office, the senate\nshall be associated with the president, unless in the case of inferior\nofficers, when the law shall otherwise direct. Have we a right to\nextend this exception? I believe not. If the constitution has invested\nall executive power in the president, I venture to assert, that the legislature has no right to diminish or modify his executive authority. 5\nIt is thus apparent that neither Hamilton nor Madison, the two early exponents\nof the opposing theories, was at all times consistent in his views on the subject.\nHistory discloses that Thomas Jefferson, likewise, was at times inconsistent.\nWhile Secretary of State under President Washington he wrote an opinion, at the\nrequest of the President, in which he said:\nThe transaction of business with foreign nations is Executive altogether. It belongs, then, to the head of that department, except as to\nsuch portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.6\nThis statement by Jefferson has been often quoted by exponents of the Hamiltonian theory. It is to be remembered, however, that Madison\xe2\x80\x99s series of articles on\nthe subject were written at Jefferson\xe2\x80\x99s request. Moreover, although Jefferson as\n\n4\n\nId. at 176 (quoting The Federalist No. 75) (emphasis added).\nQuoted in Edward S. Corwin, The President\xe2\x80\x99s Control of Foreign Relations 29 (1917).\n6\n3 The Writings of Thomas Jefferson 16 (Andrew A. Lipscomb & Albert Ellery Bergh eds., lib. ed.\n1903).\n5\n\n51\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nPresident, without authority from Congress, sent the American fleet into the\nMediterranean to wage war against Tripoli, after that fleet had engaged in a naval\nbattle with the Tripolitan fleet he seemingly belied his authority for his action in a\nmessage to Congress of December 8, 1801, in which he said:\nTripoli, the least considerable of the Barbary States, had come forward with demands unfounded either in right or in compact, and had\npermitted itself to denounce war, on our failure to comply before a\ngiven day. The style of the demand admitted but one answer. I sent a\nsmall squadron of frigates into the Mediterranean . . . with orders to\nprotect our commerce against the threatened attack. . . . Our commerce in the Mediterranean was blockaded, and that of the Atlantic\nin peril. . . . One of the Tripolitan cruisers having fallen in with, and\nengaged the small schooner Enterprise . . . was captured, after a\nheavy slaughter of her men . . . . Unauthorized by the constitution,\nwithout the sanction of Congress, to go beyond the line of defence,\nthe vessel being disabled from committing further hostilities, was\nliberated with its crew. The legislature will doubtless consider\nwhether, by authorizing measures of offence, also, they will place\nour force on an equal footing with that of its adversaries. I communicate all material information on this subject, that in the exercise of\nthe important function confided by the constitution to the legislature\nexclusively, their judgment may form itself on a knowledge and consideration of every circumstance of weight. 7\nAgain, in the Louisiana Purchase, Jefferson acted first as only the broad theory\nof Hamilton would permit, and then left his deed to be ratified and paid for by the\nCongress. Afterwards in a letter to John Breckinridge, dated August 12, 1803, he\ndeclared:\nThe Constitution has made no provision for our holding foreign territory, still less for incorporating foreign nations into our Union. The\nexecutive in seizing the fugitive occurrence which so much advances\nthe good of their country, have done an act beyond the Constitution.\nThe Legislature in casting behind them metaphysical subtleties, and\nrisking themselves like faithful servants, must ratify and pay for it,\nand throw themselves on their country for doing for them unauthorized, what we know they would have done for themselves had they\nbeen in a situation to do it.8\n\n7\n8\n\nId. at 328\xe2\x80\x9329.\n10 Writings of Thomas Jefferson, supra note 6, at 411.\n\n52\n\n\x0cThe President\xe2\x80\x99s Power in the Field of Foreign Relations\n\nHamilton, in an article signed \xe2\x80\x9cLucius Crassus,\xe2\x80\x9d howsoever inconsistently with\nhis own theory of the powers of the Chief Executive, caustically commented on\nboth Jefferson\xe2\x80\x99s action and his message in the Tripolitan affair:\nThe doctrine of the Message includes the strange absurdity, that\nwithout a declaration of war by Congress, our public force may\ndestroy the life, but may not restrain the liberty, or seize the property\nof an enemy. This was exemplified in the very instance of the Tripolitan corsair. A number of her crew were slaughtered in the combat,\nand after she was subdued, she was set free with the remainder. . . .\n[A] perfect illustration of the unintelligible right, to take the life but\nnot to abridge the liberty, or capture the property of an enemy. . . .\nThe principle avowed in the Message, would authorize our troops to\nkill those of the invader, if they should come within reach of their\nbayonets, perhaps to drive them into the sea, and drown them; but\nnot to disable them from doing harm, by the milder process of making them prisoners, and sending them into confinement. Perhaps it\nmay be replied, that the same end would be answered by disarming,\nand leaving them to starve. The merit of such an argument would be\ncomplete by adding, that should they not be famished, before the arrival of their ships with a fresh supply of arms, we might then, if\nable, disarm them a second time, and send them on board their fleet,\nto return safely home.9\nThe controversy has continued. From time to time it has been the occasion of\ndiscussion in the public press and of debate in the Congress, few administrations\nhaving passed without the question being raised in one form or another. Andrew\nJackson maintained that the designation of the President as the depositary of the\nExecutive 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\nConkling rejected it. The names of prominent men who have kept the discussion\nalive, some in the support of one and some of the other view, are too numerous to\nmention here. Many recent articles in the public press and some debates in the last\nsession of the Congress show that the question still is one upon which there is\nmuch difference of opinion.\nSo acute did the question become during Lincoln\xe2\x80\x99s administration that the\nHouse of Representatives in 1864 adopted a resolution declaring:\nThat Congress has a constitutional right to an authoritative voice in\ndeclaring and prescribing the foreign policy of the United States, as\n\n9\n\n7 The Works of Alexander Hamilton 747\xe2\x80\x9348 (John C. Hamilton ed., 1851).\n\n53\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nwell in the recognition of new Powers as in other matters; and it is\nthe constitutional duty of the President to respect that policy not less\nin diplomatic negotiations than in the use of the national force when\nauthorized by law; and the propriety of any declaration of foreign\npolicy by Congress is sufficiently proved by the vote which pronounces it . . . .10\nSharp 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\nSenator Bacon of Georgia11\xe2\x80\x94Senator Spooner supporting the broad theory of the\nPresident\xe2\x80\x99s powers and Senator Bacon advocating the opposite view. Many of the\narguments advanced are reminiscent of those of Hamilton and Madison.\nSenator Spooner, in the course of his argument quoted Mr. Justice Story as\nfollows:\nThat a power so extensive in its reach over our foreign relations\ncould 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\nthe functions (that body being conjointly intrusted with the treatymaking power) is not so obvious. Probably the circumstance that in\nall foreign governments the power was exclusively confined to the\nexecutive department, and the utter impracticability of keeping the\nSenate constantly in session, and the suddenness of the emergencies\nwhich might require the action of the Government, conduced to the\nestablishment of the authority in its present form. It is not, indeed, a\npower likely to be abused, though it is pregnant with consequences\noften involving the question of peace or war. 12\nSenator Spooner also quoted from Professor Pomeroy as follows:\nI repeat that the Executive Department, by means of this branch\nof its power over foreign relations, holds in its keeping the safety,\nwelfare, 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\n\n10\n\nCong. Globe, 38th Cong., 2d Sess. 65\xe2\x80\x9366 (Dec. 19, 1864).\n40 Cong. Rec. 1417\xe2\x80\x9331 (Jan. 23, 1906); 40 Cong. Rec. 2125\xe2\x80\x9348 (Feb. 6, 1906).\n12\n40 Cong. Rec. 1420 (1906) (quoting 2 Joseph Story, Commentaries on the Constitution of the\nUnited States \xc2\xa7 1567 (5th ed. 1891)).\n11\n\n54\n\n\x0cThe President\xe2\x80\x99s Power in the Field of Foreign Relations\n\ncontrol or curb it; its acts are political, and its responsibility is only\npolitical.13\nSenator Bacon, in support of the other view, said in part:\nThe terms upon which foreign ships shall be allowed to enter our\nports or do business with us is an important one in our foreign relations, but the power to fix and determine them is altogether with\nCongress.\n....\n. . . It is entirely within the competency of Congress to pass a law\nthat no citizen of a given country shall come to this country, that no\ngoods shall be received from it, that no merchandise shall go from\nthis country to it, that no letters shall come from it, that there shall be\nno intercommunication of any kind whatever. Who doubts the power\nof Congress to do so?\nIn other words, it is within the power of Congress to absolutely\nsunder the relations between this country and any given foreign\ncountry. When that is said the whole thing is said; when that is said\nthe whole argument is exhausted as to where rests the supreme power in foreign affairs, because the whole must include every part. If it\nis within the power of Congress to absolutely sunder all relations of\nevery kind, commercial, social, political, diplomatic, and of every\nother nature, it is certainly within the power of Congress to regulate\nand control every question subsidiary to that and included within it.\nCongress and not the President is supreme under the Constitution in\nthe control of our foreign affairs.\n....\nCompared to this great array of sovereign powers granted to Congress, those conferred upon the President present a most striking\ncontrast. He is clothed with the great power and responsibility of the\nexecution of the laws, but beyond this the only prerogative of sovereignty with which he is exclusively invested is the pardoning power,\nand even that is denied to him in cases of impeachment by the House\nand conviction by the Senate.14\n\n13\nId. (quoting John Norton Pomeroy, An Introduction to the Constitutional Law of the United\nStates \xc2\xa7 672 (3d ed. 1875)).\n14\n40 Cong. Rec. 2132, 2134.\n\n55\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nThe broad powers which Hamilton declared to be vested in the Chief Executive\nhave been exercised to a greater or lesser degree by many of the presidents.\nWashington\xe2\x80\x99s exercise of power in derogation of the treaty with France and\nJefferson\xe2\x80\x99s actions in connection with the war with Tripoli and with the Louisiana\nPurchase have been noted heretofore. Other instances are the invasions of Mexico\nunder Presidents Polk and Wilson; President McKinley\xe2\x80\x99s agreement with England,\nFrance, Italy, and Germany to suppress the Boxer Revolution and the sending of a\njoint expeditionary force into the heart of China; and President Theodore Roosevelt\xe2\x80\x99s action in connection with the Venezuela affair in 1901, and his armed\nassistance to Panama in its revolt against Columbia for the purpose of acquiring\nthe Panama Canal Zone which he had been unable to acquire from Columbia. In\nall of these situations and in others of like character, the action taken was without\nauthority from Congress, and that of Theodore Roosevelt in Panama was in direct\nconflict with the treaty with Columbia; yet in each instance the action met with the\napproval of the people and added to the prestige of the President.\nIn other instances Presidents have attempted to exercise similar powers without\nsuccess. Notable examples are President Tyler\xe2\x80\x99s attempt to annex Texas in 1844;\nPresident Grant\xe2\x80\x99s attempt to annex Santo Domingo; and President Wilson\xe2\x80\x99s effort\nto make the United States a party to the League of Nations. On these and other\noccasions, the attempted exercise of broad powers was not approved by the people\nand the Presidents therefore failed of their purpose.\nAn outstanding example of the exercise of executive power in the field of\nforeign relations is to be found in the Monroe Doctrine. First promulgated by\nPresident Monroe in 1823, that Doctrine has been consistently adhered to and has\nbeen many times restated and reasserted. As sometimes interpreted, it is broad\nenough to constitute in advance a declaration of war against any European or\nAsiatic nation that attempts to interfere in the political affairs of any independent\ngovernment on either of the American Continents. A few writers have attempted\nto justify it under the President\xe2\x80\x99s statutory authority to repel invasion or threatened\ninvasion, but most have treated it as a purely executive declaration of the foreign\npolicy of the United States. This Doctrine, unsupported for seventy-five years by\nany act of the Congress, has come to be almost, if not entirely, as much a part of\nour fundamental law as the Constitution itself. Daniel Webster said of it:\nI look upon it as a part of its treasures of reputation; and, for one,\nI intend to guard it. . . . I will neither help to erase it nor tear it out;\nnor shall it be, by any act of mine, blurred or blotted. It did honor to\nthe sagacity of the government, and will not diminish that honor.15\nPresident Cleveland referring to it said:\n\n15\n\nQuoted in Elihu Root, The Real Monroe Doctrine, 199 N. Am. Rev. 841, 843 (1914).\n\n56\n\n\x0cThe President\xe2\x80\x99s Power in the Field of Foreign Relations\n\nIt 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\nLaw as certainly and as securely as if it were specifically mentioned.16\nAnd in 1920, in its \xe2\x80\x9cresolution of ratification\xe2\x80\x9d of the Treaty of Versailles, the\nSenate incorporated therein, among others, the following reservation:\nThe United States will not submit to arbitration or to inquiry by\nthe assembly or by the council of the League of Nations, provided\nfor in said treaty of peace, any questions which in the judgment of\nthe United States depend upon or relate to its long-established policy, commonly known as the Monroe Doctrine; said doctrine is to be\ninterpreted by the United States alone and is hereby declared to be\nwholly outside the jurisdiction of said League of Nations and entirely unaffected by any provision contained in the said treaty of peace\nwith Germany.17\nWhile, as has been indicated, many Presidents have asserted the right to exercise the broad powers outlined by Hamilton, other Presidents have expressly\ndisavowed this right. President Buchanan\xe2\x80\x99s special message to the Congress, dated\nFebruary 18, 1859, in connection with Central American affairs is an example of\nsuch a disavowal.18 That message called attention to the lawless conditions existing\nin Central America, to the harsh and unlawful treatment of citizens of the United\nStates and to the arbitrary and unwarranted seizure and confiscation of United\nStates vessels and cargoes in that section of the world. It then declared that the\nPresident, unlike the executives of foreign nations, was wholly without authority\nin his own right to take any action. It disavowed any right in the President, without\nauthority from the Congress, to exert any force to correct conditions or to redress\nthe many grievous wrongs that had been, and were continuing to be, perpetrated\nagainst United States citizens and their property, and expressly requested the\nCongress to grant the President that right.19\nWhat a contrast between this action and the action of other Presidents under\nsimilar circumstances!\nThe divergent views of different Presidents on the extent of the executive power are further illustrated by a comparison of statements made by Presidents\n\n16\nQuoted in Theodore S. Woolsey, Monroe Doctrine Fundamentals, 199 N. Am. Rev. 833, 834\xe2\x80\x9335\n(1914).\n17\n59 Cong. Rec. 4577.\n18\nSpecial Message of the President on the Protection of the Transit Routes Across the Isthmus, in\nThe Messages of President Buchanan 200 (J. Buchanan Henry comp., 1888).\n19\nId. at 201\xe2\x80\x9302.\n\n57\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nTheodore Roosevelt and William Howard Taft. Referring to his action in connection with the acquisition of the Panama Canal Zone, Mr. Roosevelt said:\nIf I had followed traditional, conservative methods, I would have\nsubmitted a dignified state paper of probably two hundred pages to\nCongress and the debate on it would have been going on yet; but I\ntook the Canal Zone and let Congress debate.20\nSpeaking in his autobiography of his action in 1905 in putting custom houses in\nSanto Domingo under American control, Mr. Roosevelt said:\nThe Constitution did not explicitly give me power to bring about\nthe necessary agreement with Santo Domingo. But the Constitution\ndid not forbid my doing what I did. I put the agreement into effect,\nand I continued its execution for two years before the senate acted;\nand I would have continued it until the end of my term, if necessary,\nwithout any action by Congress. But it was far preferable that there\nshould be action by Congress, so that we might be proceeding under\na treaty which was the law of the land and not merely by a direction\nof the Chief Executive which would lapse when that particular executive left office. I therefore did my best to get the Senate to ratify\nwhat I had done.21\nMr. Roosevelt further said in his autobiography:\nThe most important factor in getting the right spirit in my Administration, next to the insistence upon courage, honesty, and a genuine\ndemocracy of desire to serve the plain people, was my insistence upon the theory that the executive power was limited only by specific\nrestrictions and prohibitions appearing in the Constitution or imposed by the Congress under its Constitutional powers. My view was\nthat every executive officer, and above all every executive officer in\nhigh 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\nnapkin. I declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he\ncould find some specific authorization to do it. My belief was that it\nwas not only his right but his duty to do anything that the needs of\nthe Nation demanded unless such action was forbidden by the Con20\nQuoted in Note, Constitutional Law\xe2\x80\x94Delegation of Powers\xe2\x80\x94External Sovereignty, 11 Temple\nL.Q. 418, 421 n.27 (1937).\n21\nTheodore Roosevelt, An Autobiography 551 (1913).\n\n58\n\n\x0cThe President\xe2\x80\x99s Power in the Field of Foreign Relations\n\nstitution or by the laws. Under this interpretation of executive power\nI did and caused to be done many things not previously done by the\nPresident and the heads of the departments. I did not usurp power,\nbut I did greatly broaden the use of executive power. In other words,\nI acted for the public welfare, I acted for the common well-being of\nall our people, whenever and in whatever manner was necessary, unless prevented by direct constitutional or legislative prohibition. I did\nnot 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\nMr. Taft, on the other hand, in his book Chief Magistrate, published after his\nretirement from office, said:\nThe true view of the Executive functions is, as I conceive it, that\nthe President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and\nincluded within such express grant as proper and necessary to its exercise. Such specific grant must be either in the Federal Constitution\nor in an act of Congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems\nto him to be in the public interest, and there is nothing in the Neagle\ncase and its definition of a law of the United States, or in other precedents, warranting such an inference. The grants of Executive power\nare 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\nor statutory provision, or it does not exist. 23\nIn the same book Mr. Taft, after quoting from President Roosevelt\xe2\x80\x99s autobiography the passage last quoted above, makes this statement:\nMy judgment is that the view of . . . Mr. Roosevelt, ascribing an\nundefined residuum of power to the President[,] is an unsafe doctrine\nand that it might lead under emergencies to results of an arbitrary\ncharacter . . . .24\nFor many years the Supreme Court did not definitely take either side in the\ncontroversy. It did hold that in matters of foreign relations the judiciary had no\nauthority, such matters being political in their nature and committed solely to the\ncharge of the political authorities of the government; but it did not distinguish\n22\n\nId. at 388\xe2\x80\x9389.\nWilliam Howard Taft, Our Chief Magistrate and His Powers 139\xe2\x80\x9340 (1916).\n24\nId. at 144.\n23\n\n59\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nbetween the Congress and the executive, nor designate which, if either, of these\ntwo political branches of the government had the higher authority.\nCommentators on the subject cite many decisions of the Supreme Court as\ntending to support the one theory or the other. However, most decisions of that\nCourt relating to matters in the field of foreign affairs, when carefully examined,\ninvolve both congressional and presidential action, and, therefore, involve some\nform of purported congressional delegation of power. Such decisions are not\npertinent 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\nfrom Congress.\nOf the decisions usually cited those in Kansas v. Colorado25 and In re Neagle26\nhave 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\ntheory. These decisions, however, fall far short of being decisive of the question.\nThe 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\ndiscussing and defining those powers the Court adopts much of the reasoning\nadvanced by Hamilton in connection with the executive power, especially that\nbased on the difference in the language of the several constitutional grants of\npowers.\nThe decision in the Neagle case is also urged in support of that theory. It holds\nthat the President\xe2\x80\x99s duty to \xe2\x80\x9ctake care that the laws be faithfully executed\xe2\x80\x9d is not\n\xe2\x80\x9climited to the enforcement of acts of Congress or of treaties of the United States\naccording to their express terms,\xe2\x80\x9d but that it includes the \xe2\x80\x9crights, duties, and\nobligations growing out of the Constitution itself, our international relations, and\nall the protection implied by the nature of the Government under the Constitution[.]\xe2\x80\x9d28 However, this part of the decision is dictum, since the court justified the\naction taken by the President in that case under an express congressional grant of\nauthority.\nThe decision in Little v. Barreme, on the other hand, lends some comfort to the\nadvocates of the Madisonian theory. Apparently it holds that in the field of foreign\nrelations if the Congress has spoken, the President is controlled by the act of that\nbody and by the policy prescribed thereby; but it seems to intimate, in a dictum,\nthat if the Congress has not spoken the powers of the President as the Chief\nExecutive are sufficient to enable him to meet any situation that may arise.29\n\n25\n\n206 U.S. 46 (1907).\n135 U.S. 1 (1890).\n27\n6 U.S. (2 Cranch) 170 (1804).\n28\n135 U.S. at 64.\n29\n6 U.S. at 177\xe2\x80\x9378.\n26\n\n60\n\n\x0cThe President\xe2\x80\x99s Power in the Field of Foreign Relations\n\nThe 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,\nrendered December 21, 1936, the Court held:\nThe broad statement that the federal government can exercise no\npowers except those specifically enumerated in the Constitution, and\nsuch implied powers as are necessary and proper to carry into effect\nthe enumerated powers, is categorically true only in respect of our\ninternal affairs.31\nIt further held that the government has powers of sovereignty not granted by\nthe Constitution\xe2\x80\x94powers which prior to the Declaration of Independence were in\nthe English crown; that these powers were wrested from the crown by the colonies\ncollectively and not individually; and that when so wrested from the crown they\nvested, not in the individual colonies, but in the colonies as a unit. The Court\ndeclared that among such powers was the power to deal with foreign nations.\nThe Court further held in the Curtiss-Wright case that in foreign affairs \xe2\x80\x9cthe\nPresident alone has the power to speak or listen as a representative of the nation,\xe2\x80\x9d\nbeing the \xe2\x80\x9c\xe2\x80\x98sole organ of the nation in its external relations\xe2\x80\x99\xe2\x80\x9d and responsible only\nto the Constitution for his conduct.32 It then said:\nIt is important to bear in mind that we are here dealing not alone\nwith an authority vested in the President by an exertion of legislative\npower, but with such an authority plus the very delicate, plenary and\nexclusive power of the President as the sole organ of the federal\ngovernment in the field of international relations\xe2\x80\x94a power which\ndoes not require as a basis for its exercise an act of Congress, but\nwhich, 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\xe2\x80\x94perhaps serious embarrassment\xe2\x80\x94is\nto be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry\nwithin the international field must often accord to the President a degree of discretion and freedom from statutory restriction which\nwould not be admissible were domestic affairs alone involved.33\n\n30\n\n299 U.S. 304 (1936).\nId. at 315\xe2\x80\x9316.\n32\nId. at 319 (quoting 10 Annals of Cong. 613 (1800) (remarks of John Marshall)).\n33\nId. at 319\xe2\x80\x9320.\n31\n\n61\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nIt must be remembered, however, that the Curtiss-Wright case involved, not the\nquestion of the President\xe2\x80\x99s power to act without congressional authority, but the\nquestion of his right to act under and in accord with an act of Congress. In that\ncase the constitutionality of the act under which the President had proceeded was\nassailed on the ground that it delegated legislative powers to the President. Much\nof the decision is dicta, and the ratio decidendi is contained in the following\nlanguage:\nWhen the President is to be authorized by legislation to act in\nrespect of a matter intended to affect a situation in foreign territory,\nthe legislator properly bears in mind the important consideration that\nthe form of the President\xe2\x80\x99s action\xe2\x80\x94or, indeed, whether he shall act\nat all\xe2\x80\x94may well depend, among other things, upon the nature of the\nconfidential information which he has or may thereafter receive, or\nupon the effect which his action may have upon our foreign relations. This consideration, in connection with what we have already\nsaid on the subject, discloses the unwisdom of requiring Congress in\nthis field of governmental power to lay down narrowly definite\nstandards by which the President is to be governed. As this court said\nin Mackenzie v. Hare, 239 U.S. 299, 311 [(1915)], \xe2\x80\x9cAs 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\nwith other countries. We should hesitate long before limiting or embarrassing such powers.\xe2\x80\x9d (Italics supplied.)34\nIt is apparent, therefore, that the case leaves much of the controverted question\nstill unsettled. It places internal and external affairs in separate categories, and\nholds that the strict rule applied by the court to congressional delegations of power\nto 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\nmight act in external affairs without congressional authority, but it leaves undecided the question whether the Congress can enact a statute in derogation of the\nPresident\xe2\x80\x99s power in this field\xe2\x80\x94for example, a mandatory embargo or neutrality\nact\xe2\x80\x94which question involves the further question whether the President may, in\ndealing with foreign nations, entirely disregard a statute which the Congress has\nenacted, and which prescribes a policy to be followed.\nOn 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\nCongress has not spoken the President\xe2\x80\x99s powers over foreign affairs are unlimited,\nbut apparently holds that when the Congress has spoken, his powers are limited to\n34\n\nId. at 321\xe2\x80\x9322.\n\n62\n\n\x0cThe President\xe2\x80\x99s Power in the Field of Foreign Relations\n\nthe policy declared by the act of the Congress. Whether the Court would today\nhold this to be a correct statement of the law, or even the correct interpretation of\nits former decision, is a matter of conjecture.\nIn view of what has been said, it is apparent that from the beginning the question of the extent of the President\xe2\x80\x99s powers has been a controversial one, and that\nthe answer to the question is to be found in the statement of Chief Justice Marshall\nin Marbury v. Madison:\n[T]he president is invested with certain important political powers, in\nthe 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\nconscience.35\nIn any government, the exercise of political powers is dependent upon the will\nof the sovereign. In the United States the people constitute the sovereign, and\ntherefore the successful exercise of any political power by the executive is\ndependent upon public opinion. For this reason it is doubtful if the question of the\nextent of the President\xe2\x80\x99s powers ever will be definitely determined. Public opinion\nis changeable; it may favor one thing today and another tomorrow. Therefore, the\npower which the public will permit the executive to exercise will vary from time\nto time according to the circumstances involved.\nLike Hamilton and Madison, the average man is never consistently either a\nstrict or a liberal constructionist. He views the Constitution and the government\nmerely 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\nbe 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\nwhich it does not approve, it will accept any construction, however restricted,\nwhich prevents the act from being done.\nThis was strikingly illustrated during the Wilson administration. When President Wilson, without any authority from the Congress, seized Vera Cruz, and\nwhen he later sent an expeditionary force into Mexico, despite criticism in many\nquarters, the public generally approved those actions. But when later he took the\nleadership in establishing the League of Nations and in his dealings with European\ncountries practically committed the United States to participation therein, public\napproval perceptibly waned and the Senate rejected the treaty. As a result thereof\nthe President\xe2\x80\x99s prestige was greatly impaired, with consequences injurious to his\npolitical influence and to his health.\nIt follows that a President today, in the performance of an act of which the\ngeneral public approves, may assume and exercise a power with the approbation\n35\n\n5 U.S. (1 Cranch) 137, 165\xe2\x80\x9366 (1803).\n\n63\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nof the public; but tomorrow, in the performance of some act of which the public\ndoes not approve, he will exercise the same or a like power at his peril.\nThe question must be considered realistically. It is essentially practical and\ndoes not admit of a legalistic treatment that fails to take into account human nature\nin the individual and in the mass. If it be shocking to legal concept to conclude\nthat a President at one time under the Constitution has the power to do an act in\nrespect of foreign relations, and that the same or another President under the same\nConstitution has not the power to do such an act at another time, the trouble is not\nwith the conclusion but with the concept. History corroborates the conclusion,\nwhile at the same time overturning any legal theory on the subject that does not\naccord with experience. Even when Conkling was bitterly attacking President\nJohnson for assuming unwarranted executive power he said:\nIt is not like the assumption of a questionable power from good\nmotives and for beneficent ends; . . . where the acquiescence of the\nnation may rightly be held a practical sanction and affirmation of the\npower.36\nPresidents will continue in the future to draw their executive power respecting\nforeign relations from the Constitution, as they have done in the past, and to\nexercise it. When the people approve the exercise, the existence of the power\nunder the Constitution will be proved; when they disapprove the exercise, the\nexistence of the power under the Constitution will be disproved. In this sphere,\nindeed, \xe2\x80\x9cThe event is a great teacher.\xe2\x80\x9d The theory of Hamilton and the theory of\nMadison have been debated continuously\xe2\x80\x94and the argument will persist. The two\nviews have not been and cannot be reconciled in the realm of logic; in the practical\nworld they converge. In the field of foreign relations, the Chief Executive moves\nin a zone of twilight* where he may proceed with assurance of his powers under\nthe Constitution only when the people follow and approve. As said by Woodrow\nWilson:\n36\nAlfred Conkling, The Powers of the Executive Department of the Government of the United\nStates 134\xe2\x80\x9335 (1866) (emphasis supplied).\n*\nEditor\xe2\x80\x99s Note: Fifteen years later, Justice Robert Jackson used the same phrase\xe2\x80\x94\xe2\x80\x9ca zone of twilight\xe2\x80\x9d\xe2\x80\x94in his famous Steel Seizure Case concurrence, albeit in more specific reference to cases in\nwhich Congress has not spoken to a matter of foreign affairs but the President nevertheless determines\nto take action. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (\xe2\x80\x9cWhen the\nPresident acts in absence of either a congressional grant or denial of authority, he can only rely upon\nhis own independent powers, but there is a zone of twilight in which he and Congress may have\nconcurrent 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\nindependent presidential responsibility. In this area, any actual test of power is likely to depend on the\nimperatives of events and contemporary imponderables rather than on abstract theories of law.\xe2\x80\x9d). In\n1937, when Assistant Solicitor General Bell wrote this opinion, Jackson was the Assistant Attorney\nGeneral for the Antitrust Division. In March 1938, Jackson was appointed Solicitor General; and in\nJanuary 1940 he was appointed Attorney General of the United States.\n\n64\n\n\x0cThe President\xe2\x80\x99s Power in the Field of Foreign Relations\n\nIf he [the President] rightly interpret the national thought and boldly\ninsist upon it, he is irresistible.37\nII. The President\xe2\x80\x99s Power to Repel Invasion\nBetter to be awakened by the alarm-bell than to perish in the\nflames.\xe2\x80\x94Burke\nClosely 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\nin the President as the Chief Executive; but it is not necessary to rely on this view,\nsince the statutes expressly provide that \xe2\x80\x9cwhenever the United States shall be\ninvaded or in imminent danger of invasion by any foreign nation,\xe2\x80\x9d the President\nmay use the military and naval forces to repel such invasion.\nIn the Prize Cases, the Supreme Court said:\nBut 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\nof invasion by foreign nations, and to suppress insurrection against\nthe government of a State or of the United States.\nIf a war be made by invasion of a foreign nation, the President is\nnot only authorized but bound to resist force by force. He does not\ninitiate the war, but is bound to accept the challenge without waiting\nfor any special legislative authority.38\nIn Martin v. Mott, the Supreme Court took a somewhat broader view of this\npower of the President. In that case Justice Story, speaking for the Court, said:\nFor the more clear and exact consideration of the subject, it may\nbe necessary to refer to the constitution of the United States, and\nsome of the provisions of the act of 1795. The constitution declares,\nthat congress shall have power \xe2\x80\x9cto provide for calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions\xe2\x80\x9d: and also \xe2\x80\x9cto provide for organizing, arming and disciplining the militia, and for governing such part of them as may be\nemployed in the service of the United States.\xe2\x80\x9d In pursuance of this\nauthority, the act of 1795 has provided, \xe2\x80\x9cthat whenever the United\nStates shall be invaded, or be in imminent danger of invasion from\n37\n38\n\nWoodrow Wilson, Constitutional Government in the United States 68 (1908).\n67 U.S. (2 Black) 635, 668 (1862).\n\n65\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nany foreign nation or Indian tribe, it shall be lawful for the president\nof the United States to call forth such number of the militia of the\nstate 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\nhis order for that purpose to such officer or officers of the militia as\nhe may think proper.\xe2\x80\x9d And like provisions are made for the other\ncases stated in the constitution. It has not been denied here, that the\nact of 1795 is within the constitutional authority of congress, or that\ncongress may not lawfully provide for cases of imminent danger of\ninvasion, as well as for cases where an invasion has actually taken\nplace. In our opinion, there is no ground for a doubt on this point,\neven if it had been relied on, for the power to provide for repelling\ninvasions includes the power to provide against the attempt and danger of invasion, as the necessary and proper means to effectuate the\nobject. One of the best means to repel invasions is to provide the\nrequisite force for action, before the invader himself has reached the\nsoil.\nThe power thus confided by congress to the president, is, doubtless, of a very high and delicate nature. A free people are naturally\njealous of the exercise of military power; and the power to call the\nmilitia into actual service, is certainly felt to be one of no ordinary\nmagnitude. But it is not a power which can be executed without a\ncorrespondent responsibility. It is, in its terms, a limited power, confined to cases of actual invasion, or of imminent danger of invasion.\nIf it be a limited power, the question arises, by whom is the exigency\nto be judged of and decided? Is the president the sole and exclusive\njudge whether the exigency has arisen, or is it to be considered as an\nopen question, upon which every officer to whom the orders of the\npresident are addressed, may decide for himself, and equally open to\nbe contested by every militiaman who shall refuse to obey the orders\nof the president? We are all of opinion, that the authority to decide\nwhether the exigency has arisen, belongs exclusively to the president, and that his decision is conclusive upon all other persons. We\nthink that this construction necessarily results from the nature of the\npower itself, and from the manifest object contemplated by the act of\ncongress. The power itself is to be exercised upon sudden emergencies, upon great occasions of state, and under circumstances which\nmay be vital to the existence of the Union. . . .\nIf we look at the language of the act of 1795, every conclusion\ndrawn from the nature of the power itself, is strongly fortified. The\nwords are, \xe2\x80\x9cwhenever the United States shall be invaded, or be in\n\n66\n\n\x0cThe President\xe2\x80\x99s Power in the Field of Foreign Relations\n\nimminent danger of invasion, &c., it shall be lawful for the president,\n&c., to call forth such number of the militia, &c., as he may judge\nnecessary to repel such invasion.\xe2\x80\x9d The power itself is confided to the\nexecutive of the Union, to him who is, by the constitution, \xe2\x80\x9cthe\ncommander-in-chief of the militia, when called into the actual service of the United States,\xe2\x80\x9d whose duty it is to \xe2\x80\x9ctake care that the laws\nbe faithfully executed,\xe2\x80\x9d and whose responsibility for an honest discharge of his official obligations is secured by the highest sanctions.\nHe is necessarily constituted the judge of the existence of the exigency, in the first instance, and is bound to act according to his belief\nof the facts.39\nThe use in the statutes and decisions of the term \xe2\x80\x9cimminent danger of invasion\xe2\x80\x9d\nraises another question. Assuming that the President\xe2\x80\x99s power to use force against a\nforeign nation is limited to his statutory power to repel an \xe2\x80\x9cinvasion\xe2\x80\x9d or an\n\xe2\x80\x9cimminent danger of invasion,\xe2\x80\x9d what constitutes an \xe2\x80\x9cimminent danger of invasion\xe2\x80\x9d? Under what circumstances may the President act, and how far may he go,\nunder his authority to meet an \xe2\x80\x9cimminent danger of invasion\xe2\x80\x9d?\nAs 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\nmay it be extended under present conditions? If at the time the Monroe Doctrine\nwas announced\xe2\x80\x94the day of coach by land and sail by sea\xe2\x80\x94the interference of a\nforeign nation in South American affairs constituted a threat of invasion of the\nUnited States, what is necessary to constitute such a threat today in the world of\nthe 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\nmilitary preparations and activities by foreign nations threat of invasion? Do the\nmilitary activities and demonstrations of Japan, for example, constitute a threat of\ninvasion of the Philippine Islands or of Hawaii? Could there be sufficient military\ndevelopments and demonstrations on islands in the Pacific or Atlantic or on the\nEuropean or the Asiatic Continent to constitute such a threat?\nMoreover, what does the term \xe2\x80\x9cinvasion\xe2\x80\x9d embrace? Is it limited to territorial\ninvasion, or does it comprehend, also, invasion of the rights of this country as a\nsovereign nation, wherever committed?\nAgain, attention is called to President Jefferson\xe2\x80\x99s message to Congress in connection with the Tripolitan affair. Jefferson justified the action taken on the ground\nthat he had sent the fleet to the Mediterranean \xe2\x80\x9cwith orders to protect our commerce against the threatened attack.\xe2\x80\x9d40 Since, in the same document, he disclaimed\n\n39\n40\n\n25 U.S. (12 Wheat.) 19, 27\xe2\x80\x9330, 31 (1827).\n3 Writings of Thomas Jefferson, supra note 6, at 328.\n\n67\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nany authority to act without authority from the Congress, perhaps he deemed his\nstatutory authority to repel invasion or threatened invasion as sufficient authority.\nThe real answer here, also, is that the determination of when there is invasion\nor imminent danger of invasion and power to deal with the subject are political\nquestions which can be resolved only through the exercise of the President\xe2\x80\x99s\njudgment supported by the will of the people. Woodrow Wilson said:\n[The President] may be both the leader of his party and the leader of\nhis nation, or he may be one or the other. If he lead the nation, his\nparty can hardly resist him. His office is anything he has the sagacity\nand force to make it.41\nAnd as stated by Justice Story in Martin v. Mott:\nIt is no answer, that such a power [the power to provide against the\ndanger of invasion] may be abused, for there is no power which is\nnot susceptible of abuse. The remedy for this, as well as for all other\nofficial misconduct, if it should occur, is to be found in the constitution itself. In a free government, the danger must be remote, since, in\naddition to the high qualities which the executive must be presumed\nto 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\nuseful to guard against usurpation or wanton tyranny. 42\nIII. The President\xe2\x80\x99s Position in the Far Eastern and Spanish\nAffairs as Affected by the Neutrality Act of 1937\nThe transaction of business with foreign nations is Executive altogether.\xe2\x80\x94Jefferson\nIf the Hamiltonian theory of the President\xe2\x80\x99s powers be accepted in its broadest\nsense, the Neutrality Act of 1937 may be treated by him as advisory only, to be put\ninto effect or not at a particular time as he may determine to be for the best\ninterests of the country. If the Madisonian view be adopted, however, even with\nmaterial qualifications, the Neutrality Act binds the President and makes it his\nconstitutional duty to \xe2\x80\x9ctake care\xe2\x80\x9d that it is enforced.\n\n41\n42\n\nConstitutional Government, supra note 37, at 69.\n25 U.S. at 32.\n\n68\n\n\x0cThe President\xe2\x80\x99s Power in the Field of Foreign Relations\n\nSince considerable misapprehension has appeared in the public press with\nrespect to the effect of the Neutrality Act of 193743 upon prior existing treaties\nentered into between this country and foreign nations, it is to be observed at the\noutset that it is settled by the decisions of the Supreme Court that under the\nConstitution both treaties and acts of Congress are the supreme law of the land;\nthat neither is superior to the other; and that in case of conflict, that which is later\nin date controls.44 It follows that to the extent that the Neutrality Act of 1937\nconflicts with any prior treaty, the treaty is abrogated by the Act. The legislative\nhistory of the Act is in accord with this doctrine.\nDuring the session at which the Joint Resolution of February 29, 193645 was\nadopted, the House Committee on Foreign Affairs had reported a resolution (H.J.\nRes. 422) containing the following section:\nSEC. 16. If the President shall find that any of the provisions of\nthis 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\ncountry for the purpose of effecting such modification of the treaty\nprovisions as may be necessary, and if he shall be unable to bring\nabout the necessary modifications, he may in his discretion, but before such provisions shall become applicable as to such foreign\ncountry or countries he shall give notice of termination and terminate\nthe treaty in accordance with the terms thereof.\nIn connection therewith the Committee\xe2\x80\x99s report stated:\nSection 16. This section has created quite an argument in your\ncommittee, on the question as to whether or not any of the provisions\nof this bill would violate any treaties between the United States and\nany foreign countries. While this section provides that if the President shall find that any of the provisions of this act, if applied, would\ncontravene treaty provisions in force between the United States and\nany 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\nbe unable to bring about the necessary modifications, he may, in his\ndiscretion, give notice of the termination of the treaty. Many of our\n43\n\n50 Stat. 121.\nSee Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox Ltd., 291 U.S. 138, 160\n(1934); Cook v. United States, 288 U.S. 102, 118\xe2\x80\x9319 (1933); Ex Parte Webb, 225 U.S. 663, 683\n(1912); Head Money Cases, 112 U.S. 580, 597\xe2\x80\x9399 (1884).\n45\n49 Stat. 1152.\n44\n\n69\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\ntreaties with European countries have a provision of 1 year\xe2\x80\x99s notice\nof termination. The committee is very anxious to see that no treaty\nrights are violated . . . .46\nThe Committee later abandoned this more liberal resolution and reported a\nsubstitute resolution, which became the Joint Resolution of February 29, 1936.\nThe Committee\xe2\x80\x99s report47 made no explanation of the change of position but\nChairman McReynolds explained on the floor of the House that a compromise had\nbeen necessary.48 The Committee was accused of \xe2\x80\x9cretreat and surrender,\xe2\x80\x9d and\n\xe2\x80\x9cabandonment of everything that committee stood for.\xe2\x80\x9d49 During the consideration\nof the substitute resolution in the House and in the Senate there was no mention of\nthe question of the effect of the resolution on treaties. The Joint Resolution of\nFebruary 29, 1936 was substantially reenacted in section 1 of the Neutrality Act of\n1937.\nA. The Spanish Situation\nSection 1(c) of the Neutrality Act of 1937 provides as follows:\nWhenever the President shall find that a state of civil strife exists in a\nforeign state and that such civil strife is of a magnitude or is being\nconducted under such conditions that the export of arms, ammunition, or implements of war from the United States to such foreign\nstate would threaten or endanger the peace of the United States, the\nPresident shall proclaim such fact, and it shall thereafter be unlawful\nto export, or attempt to export, or cause to be exported, arms, ammunition, or implements of war from any place in the United States to\nsuch foreign state, or to any neutral state for transshipment to, or for\nthe use of, such foreign state.50\nActing under that provision, the President on May 5, 1937 found and proclaimed that\na state of civil strife unhappily exists in Spain and that such civil\nstrife is of a magnitude and is being conducted under such conditions\nthat the export of arms, ammunition, or implements of war from the\n\n46\n\nH.R. Rep. No. 74-1928, at 8 (1936).\nH.R. Rep. No. 74-2001 (1936).\n48\n80 Cong. Rec. 2240 (1936).\n49\nId. at 2241.\n50\n50 Stat. at 121\xe2\x80\x9322.\n47\n\n70\n\n\x0cThe President\xe2\x80\x99s Power in the Field of Foreign Relations\n\nUnited States to Spain would threaten and endanger the peace of the\nUnited States . . . .51\nIt is thus obvious that the President, with ample justification for his finding,\nfollowed, with respect to the civil strife existing in Spain, precisely the course\nwhich he was authorized by the Congress to take.\nUnder the facts any criticism of the President\xe2\x80\x99s action in this situation cannot\nbe directed fairly to any unwarranted assumption of power. Nor can fault be found\nproperly on the ground that circumstances in Spain did not justify his finding\xe2\x80\x94\neveryone knows that they did, and in any event, the Congress left it to the\nPresident\xe2\x80\x99s sole discretion to judge whether the facts in a given situation justify\nsuch a finding and proclamation.\nFor the reason stated above, any earlier treaty with Spain inconsistent with the\nNeutrality Act of 1937 was abrogated by that Act and the President\xe2\x80\x99s action under\nit, to the extent of the inconsistency.\nB. The Far Eastern Situation\nSection 1(a) of the Neutrality Act of 1937 provides as follows:\nWhenever 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\nimplements of war from any place in the United States to any belligerent state named in such proclamation, or to any neutral state for\ntransshipment to, or for the use of, any such belligerent state.52\nThe President has not yet found under this section \xe2\x80\x9cthat there exists a state of\nwar between\xe2\x80\x9d China and Japan. Irrespective of whether the provisions of section 1\nare mandatory, requiring the President to find the existence of a state of war when\nin fact it does exist, or discretionary, leaving it to him, when there exists a state of\nwar, to determine whether and when he shall make a finding of its existence so as\nto make the Neutrality Act applicable to it, his position in not having made a\nfinding that a state of war exists between China and Japan is fully justified,\nnotwithstanding that to many people the existence of war in China is an accepted\nfact.\nJapan has not formally declared war on China, nor has China formally declared\nwar on Japan. So far has each refrained from that course, that diplomatic relations\nbetween the two countries have not even been severed but continue as in time of\n\n51\n52\n\n2 Fed. Reg. 776, 777.\n50 Stat. at 121.\n\n71\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\npeace, each maintaining in the country of the other an ambassador and consuls,\nthus indicating that neither conceives that war exists between them. While\ndiplomatic relations are often severed before war begins, the existence of diplomatic relations after the commencement of war would be novel. Moreover, no\nneutral nation has formally recognized the existence of a state of war as between\nChina and Japan. Other circumstances inconsistent with a finding that there exists\na state of war between these two nations are that the Japanese blockade is not that\nof a belligerent, being directed only against Chinese vessels, and that the United\nStates and other countries continue to harbor their warships in Chinese waters, and\nto rescue and repatriate their nationals, as they could not do in case of war between\nthe two nations.\nShould the President find that there exists a state of war between China and\nJapan, this nation would become the first to characterize the conflict between them\nas war. Such a finding on the part of the President would have the effect of\ncausing the Neutrality Act to abrogate the commerce features of the Nine Power\nTreaty\xe2\x80\x94a result not lightly to be contemplated\xe2\x80\x94while so long as he refrains, the\nAct and the Treaty are not in conflict and both are fully effective. Such a course\nwould be tantamount to a declaration of war by this country between those two\nnations, notwithstanding that neither has formally declared war on the other and\nmight well cause one or both to do so, to say nothing of causing repercussions\namong the other countries of the world, and such complications as would greatly\nlessen the possibilities of a peaceful solution of the difficulties involved\xe2\x80\x94\nparticularly through the influence of the United States. While the Neutrality Act\ndoes not disclose whether the President shall find that there exists a state of war\nonly when there has been a formal declaration as between two nations, or also\nwhen a de facto state of war exists, the existing situation in the Far East is such\nthat on either construction the course so far pursued by the President is sound and\nwithin his authority under the Act for the reasons heretofore indicated.\nAs to whether, when there exists a state of war, the Neutrality Act is mandatory\nupon the President to find its existence, the position may be taken that the act by\nits terms leaves to the President the discretion to find or not to find the existence of\na state of war\xe2\x80\x94or at least the discretion as to when to make a finding. This,\nhowever, would be a strained construction and not borne out by the legislative\nhistory of the Act.\nThe President at the time he approved the Neutrality Act of 1936 indicated by\nhis statement that the provisions of section 1 were too inflexible, saying:\nThe latter section terminates at the end of February 1936. This\nsection requires further and more complete consideration between\nnow and that date. Here again the objective is wholly good. It is the\npolicy of this Government to avoid being drawn into wars between\nother nations, but it is a fact that no Congress and no Executive can\nforesee all possible future situations. History is filled with unfore-\n\n72\n\n\x0cThe President\xe2\x80\x99s Power in the Field of Foreign Relations\n\nseeable 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\nprovisions might drag us into war instead of keeping us out. The policy of the Government is definitely committed to the maintenance of\npeace and the avoidance of any entanglements which would lead us\ninto conflict.53\nUpon this phase of the matter Congressman Johnson of the House Committee\non Foreign Affairs, in explanation of the Joint Resolution of February 29, 1936,\nmade the following explanation:\nSomeone 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,\nand only the two relating to the use of American ports by submarines\nand the travel of Americans on belligerent vessels are left to the\nPresident\xe2\x80\x99s discretion, and even in these the delegation of discretion\nis 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\nThe mandatory provisions of that Resolution were reenacted as section 1 of the\nJoint Resolution of May 1, 1937,55 without pertinent change of language. It seems\nclear, therefore, from the language of the Act and from its legislative history, that\nas to section 1(a) the Congress did not intend to leave anything to the discretion of\nthe 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\ngranting of discretion in connection with section 1(c) emphasizes this construction.\nSince the Act does not operate on a given situation until the President makes a\nfinding, it always lies within his power, when there exists a state of war, so to find\nor not to find. He could not be fairly criticized, certainly, for not making such a\nfinding until after the lapse of a reasonable time, under the circumstances, after the\ncommencement of a state of war. In any view, he would be entitled to such a\nreasonable time to investigate, consider, come to his conclusion, and act. Should\nhe delay, however, beyond such a reasonable time, he could justify his negative\naction only if the delay should meet with popular approval. Should there be,\n\n53\n\nQuoted in Allen W. Dulles & Hamilton Fish Armstrong, Can We Be Neutral? 150 (2d ed. 1936).\n80 Cong. Rec. 2245.\n55\n50 Stat. 121.\n54\n\n73\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\ninstead, popular disapproval, his position (even if placed on the Hamiltonian view)\nwould be difficult to defend. These considerations would become pressing in the\nevent that Japan should formally declare war on China.\nAnother position which has been suggested is that the Neutrality Act of 1937\ncontemplates a finding that there exists a state of war only when there has been a\nformal declaration of war, and not in case of any de facto war. It is true that the\npractice of the Roman Empire was not to recognize the existence of a state of war\nuntil war had been formally declared; but that procedure fell into early disuse, and\nfor many centuries it was the general custom not to formally declare war. The\nSupreme Court has declared that a state of war may exist without a formal\ndeclaration of war.56\nThe Second Hague Conference of 1907, in its Convention III, contains provisions looking toward reestablishment of the Roman practice:\nArticle 1\nThe contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warning, in\nthe form either of a reasoned declaration of war or of an ultimatum\nwith conditional declaration of war.\nArticle 2\nThe existence of a state of war must be notified to the neutral\nPowers without delay, and shall not take effect in regard to them until after the receipt of a notification, which may, however, be given\nby telegraph.57\nBut the effort was rendered largely nugatory by the last clause of Article 2, which\nprovides:\nNeutral 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\nThe modern tendency seems to be for nations not to make formal declarations\nof their wars, and the suggested construction of the Act as contemplating a finding\n\n56\nThe Prize Cases, 67 U.S. (2 Black) 635, 668 (1862); Bas v. Tingy (The Eliza), 4 U.S. (4 Dall.) 37,\n40\xe2\x80\x9341 (1800) (opinion of Washington, J.); Miller v. United States, 78 U.S. (11 Wall.) 268, 306 (1870);\nThe Pedro, 175 U.S. 354, 363 (1899).\n57\nHague Convention (III) Relative to the Opening of Hostilities, Oct. 18, 1907, 36 Stat. 2259, 2271.\n58\nId.\n\n74\n\n\x0cThe President\xe2\x80\x99s Power in the Field of Foreign Relations\n\nby the President only in case of formally declared war is highly technical and\nunconvincing.\nA 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\nprior to our entrance into the World War. On February 25, 1917, he went before\nthe Congress and asked its approval of his decision to authorize merchant ships to\ncarry defensive arms and to use them in the protection of lives and property in\ntheir legitimate and peaceful pursuits at sea. President Wilson said in part:\nNo doubt I already possess that authority without special warrant\nof law, by the plain implication of my constitutional duties and powers; but I prefer in the present circumstances not to act upon general\nimplication. I wish to feel that the authority and the power of the\nCongress are behind me in whatever it may become necessary for me\nto do. We are jointly the servants of the people and must act together\nand in their spirit, so far as we can divine and interpret it.59\nSo here, the President might submit the instant situation to the Congress in a\nmessage sufficiently setting forth the facts to show the serious complications\ninvolved and the undesirable results likely to flow from precipitate steps, together\nwith an outline of such plan of action as he may wish to propose, requesting the\nCongress to cooperate with the Executive in dealing with the crisis.\nSuch a course would tend to abate any criticism of the President because he has\nnot or does not find under section 1(a) of the Neutrality Act that there exists a state\nof war between China and Japan, and does not say why he fails to do so. It may be\npeculiarly adapted to the situation which will exist should Japan formally declare\nwar on China. Should the policy outlined by the President in such a message meet\nwith popular approval its purposes would be accomplished.\nThe law is the general will . . . .\xe2\x80\x94Volney\n\nGOLDEN W. BELL\nAssistant Solicitor General\n\n59\n\nQuoted in Corwin, supra note 5, at 152.\n\n75\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nAPPENDIX\nAuthorities Consulted\nAmerican Historical Review, vol. 23, no. 1, p. 868 (1917\xe2\x80\x9318).\nAmerican Political Science Review, vol. 12, p. 324 (1918).\nArmstrong, Hamilton Fish & Allen W. Dulles, Can We Be Neutral? (2d ed. 1936).\nBrooklyn Law Review, vol. 6, no. 3, pp. 382\xe2\x80\x9385 (Mar. 1937).\nCarnegie Endowment for International Peace, Division of International Law,\nPamphlet Series No. 12, The Hague Convention (III) of 1907 Relative to the\nOpening of Hostilities (1915).\nChambrun, Adolphe de, The Executive Power in the United States: A Study of\nConstitutional Law (1874).\nColumbia Law Review, vol. 36, no. 7, p. 1162 (Nov. 1936).\nConkling, Alfred, The Powers of the Executive Department of the Government of\nthe United States (1866).\nCorwin, Edward S., The President\xe2\x80\x99s Control of Foreign Relations (1917).\nDulles, Allen W. & Hamilton Fish Armstrong, Can We Be Neutral? (2d ed. 1936).\nElliot, Jonathan, Journal and Debates of the Federal Convention, vol. 4 (1830).\nFordham Law Review, vol. 6, no. 2 (May 1937).\nGeorgetown Law Journal, vol. 25, no. 3, pp. 738\xe2\x80\x9340 (Mar. 1937).\nGeorge Washington Law Review, vol. 5, no. 2, p. 271 (Jan. 1937).\nHamilton, Alexander, The Works of Alexander Hamilton, vol. 7 (John C. Hamilton\ned., 1851).\nHarvard Law Review, vol. 50, no. 4, p. 691 (Feb. 1937).\nHershey, Amos S., The International Law and Diplomacy of the Russo-Japanese\nWar (1906).\nHudson, Manley O., International Legislation, vol. 3 (1931).\nHyde, Charles Cheney, International Law, Chiefly as Interpreted and Applied by\nthe United States, vol. 2 (1922).\nJefferson, Thomas, The Writings of Thomas Jefferson, vols. 3, 9, and 10 (Andrew\nA. Lipscomb ed., mem. ed. 1903\xe2\x80\x9304).\nLatan\xc3\xa9, John Halladay, A History of American Foreign Policy (1927).\nMacDonald, William, Select Documents Illustrative of the History of the United\nStates, 1776\xe2\x80\x931861 (1930).\nMadison, James, Letters and Other Writings of James Madison, vol. 1 (1865).\nMatthews, John Mabry, The Conduct of American Foreign Relations (1922).\nMaryland Law Review, vol. 1, no. 2, pp. 167\xe2\x80\x9371 (Feb. 1937).\nMoore, John Bassett, A Digest of International Law, vol. 7 (1906).\nNorth American Review, vol. 199 (1914).\nOppenheim, Lassa, International Law, vol. 2 (A.D. McNair ed., 4th ed. 1926).\nPhillipson, Coleman, International Law and the Great War (1915).\n\n76\n\n\x0cThe President\xe2\x80\x99s Power in the Field of Foreign Relations\n\nPomeroy, John Norton, An Introduction to the Constitutional Law of the United\nStates (7th ed. 1883).\nReinsch, Paul S., Readings on American Federal Government (1909).\nSt. John\xe2\x80\x99s Law Review, vol. 11, no. 2 (Apr. 1937).\nSavage, Carlton, Policy of the United States Toward Maritime Commerce in War,\nvol. 2 (1934).\nTaft, William Howard, The Presidency: Its Duties, Its Powers, Its Opportunities\nand Its Limitations (1916).\nTemple Law Quarterly, vol. 11, no. 3, pp. 418\xe2\x80\x9321 (Apr. 1937).\nWarren, Charles, Presidential Declarations of Independence (1930).\nWheaton, Henry, Wheaton\xe2\x80\x99s Elements of International Law, vol. 2 (A. Berriedale\nKeith ed., 6th English ed. 1929).\nWilloughby, Westel W., The Constitutional Law of the United States, vol. 1 (2d\ned. 1929).\nWhite, Howard, Executive Influence in Determining Military Policy in the United\nStates (1925).\nWright, Quincy, The Control of American Foreign Relations (1922).\nYale Law Journal, vol. 16, no. 1, pp. 6\xe2\x80\x9324 (Nov. 1906).\nYale Law Journal, vol. 25, no. 8, pp. 599\xe2\x80\x93616 (June 1916).\n\n77\n\n\x0c'