THE TREATY-MAKING POWER AND REVENUE LAWS
On the whole, Madison's position has prospered. Discussion whether there are other treaty provisions than those calling for an expenditure of money which require legislation to render them legally operative has centered chiefly on the question whether the treaty-making power can of itself alone modify the revenue laws. From an early date spokesmen for the House have urged that a treaty does not, and cannot, ex proprio vigore, become supreme law of the land on this subject; and while the Senate has never conceded this claim formally, yet in a number of instances, "the treaty-making power has inserted in treaties negotiated by it and affecting the revenue laws of the United States, a proviso that they should not be deemed effective until the necessary laws to carry them into operation should be enacted by Congress, and the House has claimed that the insertion of such requirements has been, in substance, a recognition of its claim in the premises,"[171] although there are judicial dicta which inferentially support the Senate's position. Latterly the question has become largely academic. Commercial agreements nowadays are usually executive agreements contracted by authorization of Congress itself. Today the vital issue in this area of Constitutional Law is whether the treaty-making power is competent to assume obligations for the United States in the discharge of which the President can, without violation of his oath to support the Constitution, involve the country in large scale military operations abroad without authorization by the war-declaring power, Congress to wit. Current military operations in Korea appear to assume an affirmative answer to this question.
CONGRESSIONAL REPEAL OF TREATIES
It is in respect to his contention that when it is asked to carry a treaty into effect Congress has the constitutional right, and indeed the duty, to determine the matter according to its own ideas of what is expedient, that Madison has been most completely vindicated by developments. This is seen in the answer which the Court has returned to the question, as to what happens when a treaty provision and an act of Congress conflict. The answer is, that neither has any intrinsic superiority over the other and that therefore the one of later date will prevail leges posteriores priores contrarias abrogant. In short, the treaty commitments of the United States in no wise diminish Congress's constitutional powers. To be sure, legislative repeal of a treaty as law of the land may amount to a violation of it as an international contract in the judgment of the other party to it. In such case, as the Court has said, "Its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress."[172]
TREATIES Versus PRIOR ACTS OF CONGRESS
The cases are numerous in which the Court has enforced statutory provisions which were recognized by it as superseding prior treaty engagements. How as to the converse situation? Two early cases in which Chief Justice Marshall spoke for the Court, stand for the proposition that treaties, so far as self-executing, repeal earlier conflicting acts of Congress. In the case of the "Peggy,"[173] certain statutory provisions dealing with the trial of prize cases were held to have been modified by a subsequent treaty with France; and in Foster v.. Neilson,[174] while holding—mistakenly as he later admitted[175]—that the treaty of January 24, 1818 with Spain was not self-executing with respect to certain land grants, he went on to say that if it had been it would have repealed acts of Congress repugnant to it. With one exception, however, judicial dicta which reiterate this idea are obiter, and are disparaged by Willoughby, as follows: "In fact, however, there have been few (the writer is not certain that there have been any) instances in which a treaty inconsistent with a prior act of Congress has been given full force and effect as law in this country without the assent of Congress. There may indeed have been cases in which, by treaty, certain action has been taken without reference to existing Federal laws, as, for example, where by treaty certain populations have been collectively naturalized, but such treaty action has not operated to repeal or annul the existing law upon the subject. Furthermore, with specific reference to commercial arrangements with foreign powers, Congress has explicitly denied that a treaty can operate to modify the arrangements which it, by statute, has provided, and, in actual practice, has in every instance succeeded in maintaining this point."[176] The single exception just alluded to is Cook v. United States,[177] which may be regarded as part of the aftermath of National Prohibition. Here a divided Court, speaking by Justice Brandeis, ruled that the authority conferred by § 581 of the Tariff Act of 1922 and its reenactment in the tariff Act of 1930, upon officers of the Coast Guard to stop and board any vessel at any place within four leagues (12 miles) of the coast of the United States and to seize the vessel, if upon examination it shall appear that any violation of the law has been committed by reason of which the vessel or merchandise therein is liable to forfeiture, is, as respects British vessels suspected of being engaged in attempting to import alcoholic beverages into the United States in violation of its laws, modified by the Treaty of May 22, 1924, between the United States and Great Britain, so as to allow seizure of such vessels only within the distance from the coast which can be traversed in one hour by the vessel suspected of endeavoring to commit the offense.[178] Only one case is cited in support of the proposition that the treaty, being of later date than the act of Congress, superseded it so far as they were in conflict. This is Whitney v. Robertson,[179] in which an act of Congress was held to have superseded conflicting provisions of a prior treaty. Moreover, the act of Congress involved in the Cook case had, as above indicated, been reenacted subsequently to the treaty involved. The decision actually accomplishes the singular result of reversing the maxim leges posteriores. It may be suspected that it was devised to avoid a diplomatic controversy which in the low estate of Prohibition at that date would not have been worthwhile.[180]
INTERPRETATION AND TERMINATION OF TREATIES AS INTERNATIONAL COMPACTS
The repeal by Congress of the "self-executing" clauses of a treaty as "law of the land" does not of itself terminate the treaty as an international contract, although it may very well provoke the other party to the treaty to do so. Hence the question arises of where the Constitution lodges this power; also the closely related question of where it lodges the power to interpret the contractual provisions of treaties. The first case of outright abrogation of a treaty by the United States occurred in 1798, when Congress, by the act of July 7 of that year, pronounced the United States freed and exonerated from the stipulations of the Treaties of 1778 with France.[181] This act was followed two days later by one authorizing limited hostilities against the same country; and in the case of Bas v. Tingy[182] the Supreme Court treated the act of abrogation as simply one of a bundle of acts declaring "public war" upon the French Republic.
TERMINATION OF TREATIES BY NOTICE
The initial precedent in the matter of termination by notice occurred in 1846, when by the Joint Resolution of April 27, Congress authorized the President at his discretion to notify the British Government of the abrogation of the Convention of August 6, 1827, relative to the joint occupation of the Oregon Territory. As the President himself had requested the resolution, the episode supports the theory that international conventions to which the United States is party, even those terminable on notice, are terminable only by act of Congress.[183] Subsequently Congress has often passed resolutions denouncing treaties or treaty provisions which by their own terms were terminable on notice, and Presidents have usually carried out such resolutions, though not invariably.[184] By the La Follette-Furuseth Seamen's Act, approved March 4, 1915,[185] President Wilson was directed, "within ninety days after the passage of the act, to give notice to foreign governments that so much of any treaties as might be in conflict with the provisions of the act would terminate on the expiration of the periods of notice provided for in such treaties," and the required notice was given.[186] When, however, by section 34 of the Jones Merchant Marine Act of 1920 the same President was authorized and directed within ninety days to give notice to the other parties to certain treaties, which the act infracted, of the termination thereof, he refused to comply, asserting that he "did not deem the direction contained in section 34 * * * an exercise of any constitutional power possessed by Congress."[187] The same intransigent attitude was continued by Presidents Harding and Coolidge.