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propriations gave to Congress a certain authority in the matter of appointments. In 1792 an act was passed defining the duties and functions of consuls. In 1855 and 1856 Congress passed comprehensive legislation dealing with the diplomatic and consular service, defining the functions of the officers, stating where representatives were to be sent, and the grade which was to be employed. These acts were not perfectly effective because an opinion of the Attorney General,3 Caleb Cushing, declared that the President was not bound to send persons to all the places named, nor was he prohibited from sending representatives to places not named. He even went to the extent of saying that the President might send persons of different grades to places which were named in the law. Thus this legislation did not immediately result in crippling presidential initiative. Congress persisted in that type of legislation, however, and ultimately gained complete control. The law of 1893, which provided for the creation of the rank of ambassador and defined the circumstances under which an ambassador might be sent, originated in Congress and was not desired by the President or the Secretary of State. When a legation is to be raised to the rank of an embassy, it now requires specific statutory approval to make the alteration, and the President does not send regular diplomatic officers to places not provided for in legislation, nor does he send officers of a grade other than that authorized by Congress.5

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The laws by which the President's power of appointment was limited did not deal with temporary appointments or the appointment of delegates to international conferences. One reason was that for many years after the organization of the government the United States did not participate in international conferences. Most of the temporary appointments were not of a formal or important character. Where they were, as for example in the case of Jay's famous mission to Great Britain, nominations were sent to the Senate. When Madison appointed commissioners during a recess to negotiate for peace at the close of the War of 1812, a teapot tempest broke out in the Senate because he had "initiated" a mission without the consent of the Senate."

The first important invitation to an international conference was that for

3 Opin. Att'y. Gen. VII, 186 ff., 247 ff.

4 Foster, Practice of Diplomacy, 20-26; Moore, Digest of International Law, IV, 737-739.

5 See, for statement of the principal acts in this connection, Q. Wright, The Control of American Foreign Relations, 325. There has been important legislation subsequent to its publication, including provision for an embassy at Havana (Public, No. 385, 67th Congress), and an Act for the Reorganization and Improvement of the Foreign Service of the United States (the Rogers Bill-Public, No. 135, 68th Congress).

* Senate Executive Journal, I, 95–96, 99, 150, 152, 163, 164, 241–242, 244, 245, 265, 310, 311, 318-319, 326-327, 431, 436, 471; II, 25, 35, 156-158; III, 32, 35, 45, 46; Randolph to Bayard, MS. Inst. U. S. Mins., Dept. of State, II, 348-352; Pickering to Bayard, ibid., III, 208–211. 7 Senate Executive Journal, II, 346–354, 451-454, 470-471.

the Panama Congress of 1825. When the invitation arrived, the President, John Quincy Adams, though he wished to accept it, did not feel that he had power to appoint plenipotentiaries without the approval of the Senate. An unfortunate phrase in a message to Congress was interpreted as an assertion that he could accept an invitation to participate in such a conference upon his own responsibility. A bitter debate ensued. It brought a denial from Adams that he had ever asserted such authority; and a hostile Senate Committee grudgingly admitted that he had made "an express reference . . . to the concurrence of the Senate as the indispensable preliminary to the acceptance of this invitation." Having amply demonstrated that they must be consulted, the Senators ultimately approved the nominations and Congress made an appropriation. Matters had been delayed so long by the dispute that the Panama Congress had adjourned before the American delegates arrived.8

After the Panama fiasco there ensued another period of many years when the United States did not participate in international conferences. The notion of a true Pan American conference was in eclipse, and the United States would not consider attending European political conferences even if European nations would have considered issuing invitations to the United States.

When the United States began to accept invitations, it was to conferences of a technical and scientific character, without political or diplomatic significance. In 1863, for example, the Government of Prussia invited the United States to participate in the International Statistical Congress. The invitation was received after the Senate had adjourned, and the meeting was to be held and its work completed before the Senate reconvened. Under those circumstances the President appointed a commission to represent the United States, acting without any appropriation, special authority from Congress to make the appointment, or nomination to the Senate at the close of the recess. It may well have seemed that no precedent was being set, for the Statistical Congress was not wholly official in character, delegates from learned societies, as well as from cities and states, being admitted along with national delegates. Nevertheless, in 1869, an official delegate was sent to another session of the Statistical Congress without being nominated to the Senate.10 Even when, in 1872, Congress made a special appropriation to pay the costs of participation in still another session, the Senate was not asked for its approval of the three delegates."1

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The precedents thus established went unchallenged. It is true that practice was not perfectly uniform. Sometimes, as in the case of the first Pan American Conference, in 1889, the President sent the names of proposed

Ibid., III, 457-459, 473, 554, 567.

H. Ex. Doc. 289, Serial 1615, 43 Cong. 1 sess.

10 Ibid.

"Ibid., Statutes at Large, XVII, 368.

delegates to the Senate for approval.12 Occasionally, as in the law of August 5, 1892, the President was specifically "authorized to appoint five commissioners," in that instance to a monetary conference.13 But in no case did the President ask permission of Congress to send or to accept an invitation, and in most instances he appointed official delegates without reference to the Senate. That procedure was followed, not only in the cases of technical and scientific conferences, but also when plenipotentiaries were sent to the second, third, and fourth Pan American Conferences, and to the two conferences at The Hague. In none of these cases was the President "authorized" to make the appointments;14 he made them under his broad powers as the negotiator of treaties. As time went on, the practice of occasionally sending the names of delegates to the Senate for approval was dropped altogether. President Roosevelt was quite free from the trammels which hampered John Quincy Adams. The initiative of the President with reference to international conferences was complete, and the appointing power was entirely in his hands.

The President was dependent upon the legislative branch only for the funds required to pay the costs of participation in conferences. Two presidents sought in some measure to free the executive from even so much legislative control as arose from the necessity of seeking specific appropriations. President Arthur, in his second annual message of December 4, 1882,15 said, "In view of the frequent occurrence of conferences for the consideration of important matters of common interest to civilized nations, I respectfully suggest that the Executive be invested by Congress with discretionary powers to send delegates to such conventions, and that provision be made to defray the expenses incident thereto." The hoped-for lump sum appropriation was not forthcoming, and the request was renewed the next year.16 Again no attention was paid to the President's recommendation, and the matter rested until President Harrison, in his second annual message of December 1, 1890,17 referred to Arthur's message and asked that "standing provision be made for accepting, whenever deemed advisable, the frequent invitations of foreign governments to share in conferences looking to the advancement of international reforms in regard to science, sanitation, commercial laws and procedure, and other matters affecting the intercourse and progress of modern communities." This, in like fashion, brought no response, and Congress continued to make individual appropriations in all cases where money was needed to allow the President to participate in such gatherings. Thus, while Congress showed no disposition to give the Pres

12 Senate Executive Journal, XXVII, 52.

13 Stat. at Large, XXVII, 349.

14 Stat. at Large, XXXI, 637, 1179; XXXIV, 118, Sen. Ex. Doc. 744, 61 Cong. 3 sess., p. 3. 15 Richardson, Messages and Papers, VIII, 127.

16 Ibid., 176.

17 Ibid., IX, 111.

ident greater freedom than he already enjoyed, it showed as little disposition to restrict his judgment within its legitimate scope.

Suddenly, with no warning, an assault was made upon the President's power by Congress. After the General Deficiency Appropriation Bill of 1913 had been passed by the House of Representatives, the Senate Committee on Appropriations offered an amendment to the effect that, "hereafter the Executive shall not extend or accept any invitation to participate in any international congress, conference, or like event, without first having specific authority of law to do so." The amendment appeared on the floor on March 1st, in the midst of the legislative jam at the close of an expiring Congress, and during a parliamentary wrangle over the order of business before the Senate. It had not an instant of consideration, and was agreed to without a word of comment either by way of explanation or criticism.18 When the bill was sent back to the House, the amendment was not mentioned, and in accepting the conference report, no reference was made to it even by way of inquiry.19 The bill was one of the last signed by President Taft, at the Capitol, just before the inauguration of his successor.2 20

Such was the extraordinary manner in which an important precedent was overthrown. After refraining from legislative efforts to control the appointing power in matters of this character for many years, a new policy was adopted without a word of discussion upon the floor of either house. No satisfactory explanation has ever been offered. Discussion has occasionally turned to this statute in both Senate and House; but no one has been able to state authoritatively what was its real purpose or the fundamental motive.21 It is altogether likely that the law did not seem so revolutionary a move as it actually was. Congress had, as we have seen, long since gained the power to determine the grade of American diplomatic officers and where they should be sent, matters which had originally been left entirely to the discretion of the President. However similar such laws may have seemed to the new legislation respecting international conferences, there was an important difference. Acts of Congress fixing the grade or rank of permanent diplomatic officers were defensible as growing out of the power of Congress to originate and control appropriations. It could be argued that grade affects salary," and a regular appropriation becomes necessary thereby. Congress, it was held, has a right to a voice in whatever requires a regular appropria

18 Congressional Record, 62 Cong. 3 sess., XLIX, 4411.

19 March 4, 1913, ibid., 4835-4836, 4847.

20 Ibid., 4855.

21 Congressional Record, 63 Cong. 1 sess., L, 1611-1612; 67 Cong. 4 sess., LXIV, 929, 990, 1058.

This was not true of the Act of March 1, 1893, which provided for the grade of ambassador, for the law specifically said, "This provision shall in no wise affect the duties, powers, or salary of such representative." Stat. at Large, XXVII, 497. It is interesting and pertinent that this departure from a tradition as old as the government, like the one under discussion, was made without a word of comment, explanation, or criticism.

tion. But in the matter of international conferences, the argument does not have the same force. Appointments to such gatherings are temporary in character. They may involve no cost; or the cost may properly be met from funds already at the disposal of the President or the Department of State. If Congress desired to legislate merely to preserve the independence of its appropriating power, the act should have been phrased in different terms. Congress could properly prohibit sending or accepting any invitation which would involve expenditure of funds not previously appropriated. A law requiring the President to secure an appropriation from Congress before entering upon a course of action that would entail expenditure beyond the amount of his "secret fund" would have involved no invasion of executive power.

The law of 1913 was not so limited. It made no reference to the appropriating power, but only to the legislative power. It should be borne in mind that the process of "authorization" is legislative in character, and is to be distinguished from the process of "appropriation." The rules of Congress recognize this distinction, so that the objection of a single member rules out legislative provisions from an appropriation bill. An appropriation does not constitute an "authorization"; it merely facilitates the exercise of a power derived from the Constitution or from prior legislative authorization. In default of any verbal explanation of the purpose of the act, the intent was made clear by subsequent authorizations under the act; many of these contained the proviso "that no appropriation shall be granted at any time for expenses by delegates or any other expenses incurred in connection with said conference."'23 The intent, in such instances, is manifestly to secure legislative control of the executive management of foreign relations. In attempting thus to curtail the President's power, a new departure was made, for which the statutes with reference to the foreign service offer no true analogy. From another point of view it may have appeared to the framers of the law that no great or significant variation from established custom was involved. Upon a number of occasions Congress had requested the President to issue invitations to international congresses or conferences to be held in this country.24 Occasionally the language was made to read, "that the President be authorized and requested" or simply "authorized" to extend invitations.25 The meaning of such resolutions is clear when viewed in the light of legislative practice; they meant that if invitations to an "authorized" conference were accepted, and an appropriation became necessary to provide for its sessions, the money would be forthcoming.26 Such resolutions were intended as advice or encouragement for the President. They did not compel him to call the conference. Neither did the absence of such a reso

23 See, for example, Stat. at Large, XXXVIII, 237, 768, 773, etc.

24 See, for example, Stat. at Large, XXXVII, 642.

25 Ibid., 636, 637, etc.

26 For "authorization," see ibid., XXXIV, 1422, and for the appropriation, XXXV, 680.

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