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lution prevent him from making plans for a conference. The President did not need to wait for such authorizations in issuing invitations. In no case did the executive request "authority" to invite other nations. So far as the acceptance of invitations from other nations to conferences to be held abroad was concerned, the President never requested authority to accept; and Congress did not volunteer to give it. The procedure was simply to ask, where necessary, an appropriation to pay the costs of American participation, which Congress, in its discretion, could grant or withhold. Congress did not always have a perfectly free hand, for sometimes the prior acceptance of the invitation had, in a sense, committed the whole government; and sometimes, but less frequently, the request did not come until participation was a fact. Approaching the matter from the point of view of executive practice or from that of Congressional procedure, it is perfectly clear that these earlier legislative "authorizations" involved no element of control over the executive beyond that arising from the normal exercise of the appropriating power. In that respect, as in others, the law of 1913 made a radical departure from earlier practice.

The conclusion must be that the law of 1913 represented an attempt to control the judgment of the President on a matter committed to his especial care. In so far it appears to be unconstitutional. It has never been construed by the Attorney General and it has not come before any court. President Wilson did not know of its existence until he had been in office more than three years. As soon as his attention was drawn to it, he declared it to be an "utterly futile" statute, because it did not come within the recognized powers of Congress. It was not an act limiting the power of the Secretary of State, whose powers, being the creature of legislation, may be altered by act of Congress. It was levelled at the President himself,27 and sought to limit his discretion in the conduct of one type of negotiation, an increasingly common type. If Congress may deny the President the right to negotiate in a conference, it may limit his power to negotiate through other channels. This has not been contemplated in our constitutional law. Congress may partially cripple a power which it is not competent to destroy by refusing appropriations. But Congress has no power whatever to limit the President in his choice of negotiators. In contemplation of law, the President is the negotiator of all treaties. The actual discussion is usually committed by the President to an agent, but there are no limitations upon

27 It is to be contrasted with laws giving directions or powers, or limiting the authority of federal bureaus. A joint resolution approved Aug. 17, 1912, provided "That the several Federal bureaus doing hygienic and demographic work are hereby authorized to prepare and install exhibits at the exhibition to be held in connection with the Fifteenth International Congress on Hygiene and Demography. . . . Provided, That such exhibits . . . can be prepared and installed without requiring any special appropriation for this purpose." Stat. at Large, XXXVII, 642. Such an authorization is proper when directed to a bureau, but to require the President to get such authorization to engage in a discussion, for such is the work of a conference, is an entirely different matter.

his choice of a representative. He may select a diplomatic or other official, a private citizen, or even a foreigner. That has long been the admitted theory and practice. It is only the question whether his agents, be they called commissioners or delegates or by some other title, shall receive compensation, which must be decided by Congress, and then only in the absence of money available from contingent or other funds. Yet this statute seeks, in explicit terms, to prevent the President from appointing delegates to conferences, and makes no reference to the matter of appropriations at all. In view of these considerations, it is not surprising that the law has not been uniformly interpreted or consistently observed. In many cases, it is true, attention has been paid to its terms. Shortly after the passage of the act, for example, authorization was secured before the President accepted an invitation from the Government of the Netherlands to be represented at an international conference on education held at The Hague, in 1913. On that occasion the Acting Secretary of State called the attention of the Secretary of the Interior to the law.28 A joint resolution authorizing participation was drafted in the office of the Commissioner of Education. This was considered by committees of the House of Representatives and the Senate, and finally reported favorably and passed.29

It is exceedingly significant, however, that there is not a single case where the President secured from Congress authorization to accept an invitation to a conference of a political or diplomatic character, such, for example, as the Fifth Pan American Conference. The illustration, moreover, is one of peculiar interest, because an appropriation was necessary.30 The policy in this respect was of the greatest importance, because it released the President from leading strings in the matter of war diplomacy. There was no legislative authorization for him to attend the Paris Peace Conference, nor for American participation in the Supreme Economic Council, the London Conference or any of the other numerous bodies charged with the liquidation of the political and other problems of the World War.

Not only has the executive acted in accepting invitations to participate in political conferences without congressional authorization, but it appears that since 1917 the whole practice of requesting Congress for authority to accept invitations to any sort of international conference has virtually fallen into disuse. The last specific statutory authorization of that character occurred with the approval, March 3, 1917, of a joint resolution for participation in the Tenth International Congress of the World's Purity Federation. There appears to have been only one request for authority to accept an invitation since that time.32 Yet it is well known that the United

31

28 Congressional Record, 63 Cong. 1 sess., L, 1466.

29 Ibid., 1611–1612; Stat. at Large, XXXVIII, 236–237.

30 Stat. at Large, XXXVIII, 450, 1126; ibid., XXXIX, 259, 1055.

31 Stat. at Large, XXXIX, 1134.

32 Congressional Record, 67 Cong. 4 sess., LXIV, 1520; Sen. Ex. Doc. 287, 67 Cong. 4 sess.

States has participated in many conferences in the years between 1917 and 1925. Moreover, Congress has in several instances appropriated money for participation, despite the fact that the provisions of the law had been neglected.33

34

In the matter of issuing invitations to conferences in this country, the provisions of the statute have been somewhat more carefully observed. There is one exception of the first magnitude. The so-called Borah resolution, approved July 12, 1921, "authorized and requested" the President "to invite the Governments of Great Britain and Japan to send representatives to a conference" for the purpose of reaching an agreement for the reduction of naval expenditures and building programs "during the next five years." The executive took no notice of this in preparing for the Washington Conference, either in sending invitations to foreign nations or in asking appropriations from Congress. The President acted as though the two had no connection whatever. Senator Borah himself said in the Senate a year after the conference, that "it has been stated time and time again authoritatively that he [the President] did not call the disarmament conference as a result of that resolution. It originated in another way, we are told, and it was not the disarmament conference for which the resolution provided. It included subject matters which the resolution did not cover. It included countries which the resolution did not cover, and it included subject matters which even disarmament did not cover.' 1135

The Washington Conference stands as an exception. It is very significant that the exception occurred in the case of a conference diplomatic and political in character. It indicates that the executive is more willing to make a stand for the independent exercise of power in matters of that character. The general custom of the executive is to ask authorization from Congress before issuing invitations for conferences to meet in this country. That practice has been followed even when no appropriation was required.36

Congress, on its part, has not hesitated to attach restrictions when it gave legislative approval to executive proposals for participation in international conferences. An important instance occurred in connection with the International Communications Conference. It was agreed during the negotiation of the Treaty of Peace at Paris that "the Principal Allied and Associated Powers shall as soon as possible arrange for the convoking of an international congress to consider all international aspects of communication by land telegraphs, cables, and wireless telegraphy, and to make recommendations to the Powers concerned with a view to providing the entire world with adequate facilities of this nature on a fair and equitable basis." The

*See, for example, Stat. at Large, XLII, 1548.

"Ibid., 141.

"Congressional Record, 67 Cong. 4 sess., LXIV, 929.

*See, for examples, Stat. at Large, XXXVIII, 1222; XXXIX, 475, 618, 894, 1168; XLI, 271, 279, 367.

conference was to meet in Washington. Secretary of State Lansing wrote President Wilson, September 4, 1919, calling his attention to the law of March 4, 1913, and suggesting that the matter "be laid before Congress for its decision as to whether it will authorize the extension of the formal invitation and will provide the appropriation of $75,000 which it is thought will be required for United States participation in this international conference."37 The President, thereupon, without referring to the opinion of this act which he had expressed with such vigor and promptness on first hearing of it, sent a message to Congress asking the authorization, mentioning the Act of 1913 as the reason for his action. The chairman of the Committee on Foreign Relations, Senator Lodge, requested the Secretary of State to draft a bill.38 As drafted in the Department of State, it provided that the President be "requested and authorized" to call the conference "and to appoint representatives to participate therein."39 The inclusion of the last clause proved to be an error in judgment. The President had full power to make the appointments without any special authorization upon that point. The appearance of the phrase served only to draw attention to the fact that the appointments were to be made by the President alone. The Committee on Foreign Affairs of the House of Representatives considered the clause, and the majority determined upon an amendment providing that the delegates should be appointed only "by and with the advice and consent of the Senate."40 The acting chairman communicated their purpose to the Secretary of State, who replied, "I would suggest that it is not customary to stipulate that delegates to the conference shall be appointed with the advice and consent of the Senate, and I think it would be wise to omit that stipulation." A struggle over precedents ensued in the committee; but the majority persisted, and two reports, one for the majority and one for the minority, were laid before the House. In the partisan debate which followed, the majority admitted that precedents were against them,42 that no such limitation had ever been put upon the President in any previous act of the character of the one under discussion.43 Majority spokesmen stated boldly and frankly that the amendment was designed to establish a new precedent. It was contended that by sending a message requesting authorization, the President had "recognized the authority of Congress to place this restriction on the calling of these conventions," and that having "the right to vote to grant or deny the President's request," Congress has "the right to put conditions on the granting of that request, whether it has ever been done 87 Congressional Record, 66 Cong. 2 sess., LIX, 270.

38 Ibid., 267.

39 Ibid., 66 Cong. 1 sess., LVIII, 7329.

40 Congressional Record, 66 Cong. 1 sess., LVIII, 7329.

41 Ibid., LIX, 271.

42 Ibid., LVIII, 7331, 7333, 7339, etc.

43 Ibid., 7332, 7335, etc.

Ibid., 7331, 7335.

before or not." The provision was inserted in the bill, and while it has not been uniformly made a part of subsequent enactments of the same character, it has appeared upon one or two occasions.46

Another instance of attaching restrictions to legislative authorization of conferences occurred in connection with the International Labor Conference. The Treaty of Versailles provided that such a meeting should be held, and Washington was named as the place of meeting.47 When the time came for issuing the invitations, the Senate was in the midst of its bitter debate over the proposal to approve the ratification of that treaty. There were, naturally enough, fears that the proposal for the International Labor Conference would get tangled up in the general treaty discussion. Apparently in an effort to avoid that result, the Secretary of Labor prepared a joint resolution authorizing the President to convene and make arrangements for the conference, "provided, however, that nothing herein shall be held to authorize the President to appoint any delegates to represent the United States of America at the said meeting of such conference, or to authorize the United States of America to participate therein unless and until the Senate shall have ratified the provisions of the said proposed treaty of peace with reference to such general International Labor Conference." The proviso had the desired effect, and the authorization was voted without serious opposition.49 But there was loss as well as gain. For the sake of expediency, a very damaging principle, so far as the executive conduct of foreign relations is concerned, was admitted. In this case it was virtually conceded that Congress has a right to attach conditions to a proposed line of action by the President within the sphere of his control of foreign relations.

In seeking to exercise control beyond its historic province Congress tends to dictate the instructions which the American delegate is to bear, or to drive the President to unofficial diplomacy. Former Secretary of State Hughes in an address referred to the danger that if Congress undertook to authorize representation in the League of Nations, "the Congress itself most probably would reserve the authority to give instructions." In appropriating money for representation in the Opium Conference, Congress stipulated that "the representatives of the United States shall sign no agreement which does not fulfill the conditions necessary for the suppression of the habit forming drug traffic."50 Certainly there is no logical stopping place between giving the

45 Congressional Record, 7346, 7348; and for Senate action, LIX, 267. See, for example, Stat. at Large, XLII, 363.

47 Congressional Record, 66 Cong. 1 sess., LVIII, 3503. 48 Ibid., 3390, 3502.

49 Ibid., 3504, 3584, 3921.

50 House Joint Resolution, 195, 68th Cong. (Public Resolution 20, approved May 15, 1924). It is significant to observe that one of the reasons publicly stated for the retirement of the American delegation from the Opium Conference was that an agreement could not be reached which would accord with the limitation set by Congress in this act. (See letter of the Hon. Stephen G. Porter, announcing the withdrawal of the American Delegation, printed in the JOURNAL for April, 1925, p. 380.)

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