d. Congressional Ratication of President's Exercise of War Power

When no definitely supporting statute has been available at the time the Executive took action, the question of his authority frequently has become moot by subsequent ratifying enactment.40 By so ratifying Congress, without any assumption that it is abdicating any of its powers, has recognized the importance of avoiding uncertainty and securing unified, quick-acting control of national resources in time of war. To this end Congress has granted vast power to the President in every war," retaining, however, its hold on the purse strings.

e. Bearing of Prior Congressional Enactment or Treaty

43

This matter has been dealt with but slightly by the courts. The position that seems usually to be assumed is that, in the absence of congressional action or treaty the President may, in appropriate cases where facts of urgent necessity warrant it, take military action under his grant of constitutional authority as Chief Executive and Commander in Chief.42 According to this view, however, where Congress within the scope of its constitutional power has already acted, such congressional action may limit what the President might otherwise be warranted in doing independently. For example, Congress, under its express constitutional authority to make rules concerning captures on land and water, has established the law on the particular matter. It therefore becomes the duty of the President as Chief Executive to see that the law as thus established is faithfully executed. According to this view, therefore, the President's constitutional war power is not a power to supersede otherwise valid acts of Congress. Rather, what is in question in such cases is a sort of residuary war power vested in the Executive by the Constitution, which is always available for independent exercise where facts of urgent necessity warrant it in dealing with emergency circumstances involving the national safety which are not provided for by congressional en

actment.44a

Corwin, The War and the Constitution, President and Congress (1943), 37 Am. Pol. Sci. Rev. 18; Corwin, the President, Office and Powers (1940) at pp. 184, 197-198. Cf. Powers Mercantile Co. v. Olson, 7 F. Supp. 865, 869 (1934) (Governor of a State). See also, Stein, Judicial Review of Determinations of Federal Military Tribunals (1941), 11 Brooklyn Law Rev. 30. See also footnote 16 above, and 977 below.

The martial rule exercised in Hawaii since the Japanese attack upon Pearl Harbor on December 7, 1941, was upheld in Ex parte Zimmerman, 132 F. 2d 442 (1942), one judge dissenting, who relied heavily upon Fx parte Milligan, 4 Wall. 2 (1966). She also dicta thereon in United States v. Minoru Yasui, 48 F. Supp. 40 (1942), at p. 49 and its footnote 24. But see Anthony, Martial Law. Military Government, and Writ of Habeas Corpus in Hawaii (1943), 31 Calif. L. Rev. 477; Barnett, Martial Law, Separation of Powers, Conflicts Between Civil Courts and Military Authorities (1943), 23 Orig. L. Rev. 126.

40 See, for example, Title III, sec. 302 of the First War Powers Act, 1941, approved Dec. 18, 1941 (55 Stat. 838). Congress by legislative act ratified executive action in wartime affecting American citizens of Japanese ancestry in certain military areas on the Pacific Coast. Hirabayashi v. United States, 320 U. S. 81, 91 (1943). Similarly, Congress through provisions in the War Labor Disputes Act (Public Law 89, 78th Cong.) ratified earlier executive action setting up the War Labor Board.

41 Compare Berdahl, War Powers of the Executive in the United States (1921), p. 167, et seq.; Ford, The War and the Constitution (1917), 120 Atl. Month. 485; Ogg, Congress and the Conduct of War (1917), 56 R. of Revs. 295; see Deak, United States Neutrality Acts, Theory and Practice. International Conciliation, No. 358, March 1940, Carnegie Endowment for International Peace.

42 Hamilton v. Dillin, 21 Wall. 73, 87 (1874); Lapeyre v. United States, 17 Wall. 191. 204 (1872); In re Neagle, 135 U. S. 1 (1890); Wells v. Nickles, 104 U. S. 144 (1881); 30 Op. A. G. 291 (1914); United States v. McFarland, 15 F. 2d 823, 826 (C. C. A. 4, 1926), cert. granted, 273 U. S. 688 (1927), cert. revoked, 275 U. S. 485 (1927); United States v. Russell, 13 Wall. 623 (1871). Cf. 40 Op. A. G., Nov. 12, 1942; (1940) 39 Op. A. G. 484. 43 11 Op. A. G. 273 (1865); 12 Op. A. G. 54 (1866); Quincy Wright, The Lend-Lease Bill and International Law (1941), 35 Am. J. Int. L. 305.

See footnote 43 above, and footnote 46 below.

44a Cf. 40 Op. A. G., Nov. 12, 1942 (procurement by commanding generals in foreign theaters of war).

45

It is thus apparent that the constitutional war powers of the President are not unlimited. Some courts have taken a strict view of these powers in this respect. During the troubled Napoleonic period it was held in several cases involving captures on the high seas of foreign vessels and cargoes that, since Congress had acted, a presidential sanction of the deed complained of in contravention of the congressional enactment was not a defense to the unwise captor.46

f. Certain Judicially Examined Instances of Executive Exercise of War Power

47

49

The President has certain powers of expropriation of property by determining when and where martial law is to be imposed. To a limited extent a similar power attaches to his determining what rules should govern the army and navy as to requisitioning for their needs.48 As Commander in Chief of the Army and Navy, upon conquering hostile territory he may impose conditions which effect an expropriation of property or may waive or forbid expropriation. During the conduct of war the Executive has considerable powers over enemy property within or without the zone of combat,50 and his powers of expropriation can extend to property of loyal citizens which is located in enemy territory where necessary to carry on military operations.51 As head of the armed forces, he would seem to have a right to prevent or to permit intercourse with the enemy within certain limitations.52 As Commander in Chief of the Army and Navy, it would seem that he could authorize the destruction of property in the zone of military operations in order to prevent continuance of hostilities by the enemy.5

As representative of the Government in respect to foreign affairs, the powers of the Executive are very broad.54 By use of executive agreement and the interchange of diplomatic notes, property rights have been affected without congressional action.55 The validity of such arrangements seems well established. The right to initiate the making of treaties has been held to justify expropriation of property

56

46 The Orono, 18 Fed. Cas. No. 10585 (D. Mass. 1812); The Matilda A. Lewis, 16 Fed. Cas. No. 9281 (S. D. N. Y. 1867); Gelston v. Hoyt, 3 Wheat. 246, 329, et seq. (1818). In United States v. Western Union Telegraph Co., 272 Fed. 893 (1921), reversed upon stipulation, 260 U. S. 754 (1922). See, however, 22 Op. A. G. 13 (1898) and United States. v. La Compagnie Francaise Des Cables Telegraphiques, et al., 77 Fed. 495 (S. D. N. Y. 1896). 46 See The Flying Fish, 2 Cr. 170 (1804); Otis v. Bacon, 7 Cr. 589 (1813). Cf. Gelston v. Hoyt, 3 Wheat. 246, 328 (1818).

47 The use of property may be drastically curtailed. See footnotes 134-146 and 804817 below, with accompanying text.

48 Berdahl, War Powers of the Executive in the United States (1921), p. 152, et seq.; cf. Dow v. Johnson, 100 U. S. 158 (1879).

49 Dooley v. United States, 182 U. S. 222 (1901). The court held otherwise, four judges dissenting, as to duties similarly exacted after ratification of peace treaty.

50 See Whiting, War Powers under the Constitution of the United States (43rd ed. 1871), p. 57.

51 Whiting. supra, p. 58.

52 United States v. La Compagnie Francaise Des Cables Telegraphiques, et al. 77 Fed. 495 (S. D. N. Y. 1896); Glenn, The Army and the Law (1918), p. 70; Warren, Supplemental Brief in Support of the Power of the Executive (In the Absence of Legislation by Congress) To Prevent a Breach of Neutral Obligations Imposed on the United States by the Law of Nations or by Treaty. Department of Justice, JX 1416 .A4 1915.

53 Cf. Wiggins v. United States, 3 C. Cls. 412 (1867).

54 Cf. Williams v. Suffolk Insurance Co., 13 Peters 415 (1939); United States v. La Compagnie Francaise Des Cables Telegraphiques, et al., 77 Fed. 495 (S. D. N. Y. 1896). See also Wright, The Power to Declare Neutrality under American Law (1940), 34 Am. J. Int. L. 302.

55 Berdahl, War Powers of the Executive in the United States (1921), p. 38, et seq; United States v. Belmont, 301 U. S. 324, 330 (1937). See also United States v. Pink, 315 U. S. 203 (1942) and Anderson v. U. S. Transandine, etc., 289 N. Y. 9, 43 N. E. 2d 502 (1942). The exchange of overage destroyers for outlying naval and air bases in 1940 was also arranged by executive agreement, based in part on the President's constitutional war power. See (1940) 39 Op. A. G. 484.

See United States v. Curtiss-Wright Corp., 299 U. S. 304, 318 (1936): Berdahl, supra, 7. Cf. Lenoir, Treaties and the Supreme Court (1934), 1 U. of Chi. Rev. 602, 609.

in wartime by the Executive.57 Where a treaty has been entered into and Congress has not enacted legislation to carry out its purpose, the right of the President to execute the treaty where the necessary means are available has been recognized.5

58

g. Practical Construction by Holders of the Presidential Office

In the absence of conclusive judicial decision it has been appropriately said that "practical construction of the scope of executive power by holders of the presidential office is entitled to great weight in determining the effect of the Constitution." 59

63

In practice there have been frequently recurring instances of times of emergency where presidential action has affected property rights, at least indirectly, without specifically authorizing statutes. One is President Washington's Neutrality Proclamation of 1793.61 President Lincoln's executive acts during the War Between the States were often questioned or examined for charges of disregard of the Constitution.62 He proclaimed a blockade. He suspended the writ of habeas corpus.4 He ordered an increase in the regular army and called for volunteers without waiting for Congress to act.65 Here, as in most other instances, Congress subsequently ratified the President's acts.66 In one outstanding instance which was judicially examined the Supreme Court expressed the view that the presidential proclamation of blockade could have been sustained even without congressional ratification. At the outset of the War Between the States federal officials without any specific statutory authority took over the control of various railroads.68

67

72

70

Presidents McKinley,69 Cleveland, and Theodore Roosevelt,"1 like Jefferson before them, by private word or official proclamation, expressed the opinion that executive powers could be broadly exercised in time of war. While President Taft approached the question from

57 Commercial Cable Co. v. Burleson, 255 Fed. 99, 105 (S. D. N. Y. 1919), rev'd on other grounds, 250 U. S. 360 (1919)-taking after Armistice.

5 E. g. Ex parte Toscano, 208 Fed. 938 (D. C. S. D. Calif. 1913). See 30 Op. A. G. 217 (1913); 13 Op. A. G. 354 (1870); Warren, Supplemental Brief in Support of the Power of the Executive (In the Absence of Legislation by Congress) To Prevent a Breach of Neutral Obligations Imposed on the United States by the Law of Nations or by Treaty. Department of Justice, JX 1416 .A4 1915, pp. 17, et seq.

59 Culp, Executive Power in Emergencies (1933), 31 Mich. L. Rev. 1066, 1081.

60 Numerous examples other than those referred to in the text are collected in Berdahl, War l'owers of the Executive in the United States (1921). See also McCarren, The Growth of the Federal Executive Power (1933), 19 A. B. A. J. 587.

Discussed in Berdahl, supra, p. 44, footnote 8 therein.

62 Berdahl, War Powers of the Executive in the United States (1921), pp. 74-77; Culp, Executive Power in Emergencies (933), 31 Mich. L. Rev. 1066, 108-1082; Clark, Emergencies and the Law (1934), 49 Pol. Sci. Q. 268, 269, footnote 5; Davenport, the Growing Power of the Presidency (1934), 14 B. U. L. Rev. 655, 659-660; Tansill, War Powers of the President (1930), 45 Pol. Sci. Q. 8-9.

63 Prize Cases, 2 Black 635 (1862).

64 Berdahl, op. cited footnote 55 at p. 190, et seq. In Ex Parte Merryman, 17 Fed. Cas. 9487 (C. C. D. Md. 1861), Judge Taney found Lincoln's suspension of the writ of habeas corpus unsupported by the Constitution, a postition approved in Ex Parte Benedict, 3 Fed. Cas. 1292 (N. D. N. Y. 1862), but repudiated in at least one court of coordinate jurisdiction, see Culp, Executive Power in Emergencies (1933), 31 Mich. L. Rev. 1066, 1083, footnote 78 therein. See also footnotes 34 to 39 above, and footnote 808 below, with accompanying text.

65 See Berdahl, op. cit. footnote 55, at pp. 74-77.

66 Berdah', op. cit. footnote 55, p. 191, et seq. therein.

67 Prize Cases, 2 Black 635 (1862).

es See Aitchison, War Time Control of American Railways (1940), 26 Va. L. Rev. 847; 856, et seq.

69 Proclamation declaring blockade of Cuba, April 22, 1898, 30 Stat. 1769.

70 Culp. Executive Power in Emergencies (1933), 31 Mich. L. Rev. 1066, 1083, quoting from and citing Cleveland, Independence of the Executive (1913).

71 Culp, supra, p. 1084.

72 Berdahl, War Powers of the Executive in the United States (1921), pp. 63–64; Franklin, Wartime Powers of the American Presidency as Conceived by Thomas Jefferson (1942), 2 Lawyer's Guild Rev. 13-20.

a considerably different standpoint, he reached a somewhat similar position with regard to executive exercise of war powers."

74

73

President Wilson, during wartime, by Executive order, imposed a rigorous censorship upon telegrams, cablegrams, and telephone communications emanating from or sent to points outside the United States. By a proclamation "by virtue of the powers vested in” him as President the Chief Executive imposed restrictions on German insurance companies.75 Pending legislation to place transportation under Federal control, President Wilson, through the Secretary of War, assumed control for a period of several months. It has been said of the period of 1917-18 that "of all the important administrative agencies established during the recent war to carry on some phase of war activity very few were expressly created by statute." "

Even the power to pardon and grant reprieves may affect interests in property.

78

It is apparent, therefore, that the weight of actual practice is heavily in favor of a very broad application of Execuive power in war or similar emergencies.79 Discussions of the question by legal and political writers have, in the main, supported a wide range of Executive action.80

4. Authority Derived From International Law

a. How Authoritative Is International Law?

81

Under traditionally recognized international law every sovereign nation has inherent authority to wage war, a well-recognized incident in which is the authority to expropriate property for war purposes.82International law includes many provisions to regulate the destruction, appropriation, or use of enemy or neutral property.83

International law has represented practices either customarily observed by sovereign nations in their dealings with each other or embodied in generally accepted treaties. It has no superior central prescribing and enforcing authority over sovereign nations, but other

73 Culp, supra, p. 1085.

74 Ex. Order No. 2604 (April 26, 1917). No express statutory authority for such censorship seems to have existed until the Trading with the Enemy Act in October 1917, 40 Stat. 411; see Berdahl, supra, p. 200. Compare the act to regulate radio communication, 37 Stat. 322. Statutory authority might be derived, however, if necessary, from the declaration of war. See footnotes 10 and 17 above.

75 40 Stat. 1654-1655.

76 See Aitchison, War Time Control of American Railways (1940), 26 Va. L. Rev. 847, 869, et seq.

77 Berdahl, War Powers of the Executive in the United States (1921), p. 172.

78 Berdahl, War Powers of the Executive in the United States (1921), p. 150, 15 Op. A. G. 60 (1875); 16 Stat. 235, Juy 12, 1870; 11 Op. A. G. 445 (1866); Semble, 10 Op. A. G. 452 (1863); 23 Op. A. G. 360 (1901); 30 Op. A. G. 246 (1914); Osborn v. United States. 91 U. S. 474 (1875); United States v. Klein, 13 Wall. 128 (1871).

79 See Lavenport, The Growing Power of the Presidency (1934), 14 B. U. L. Rev. 655; Senator McCarren, The Growth of the Federal Executive Power (1933), 19 A. B. A. J. 587.

50 Berdahl, War Powers of the Executive in the United States (1921), pp. 76, 265, et seq.; Corwin, The President-Office and Powers (1940); Laski, The American Presidency (1940); Note, American Economic Mobilization (1942), 55 Harv. L. Rev. 427, at pp. 516518; Davenport, The Growing Power of the Presidency (1934), 14 B. U. L. Rev. 655; Tansill, War Powers of the President (1930), 45 Pol. Sci. Q. 8-9. See also footnotes 30 to 39 above, with accompanying text.

81 Oppenheim, International Law (6th ed. Lauterpacht 1940) vol. II, secs. 54, 62-64; Wilson, International Law and the Constitution (1923), 13 Boston Univ. L. Rev. 462. 82 See 2 Hyde, International Law (1922) p. 232, et seq.; Bentwich, The Law of Private Property in War (1907); Jones, Expropriation in Roman Law (1929), 45 L. Q. Rev. 512. Many illustrations are set forth in remarks of Senator King, 64 Cong. Rec. 5283, et seq. 1923. See also footnotes 306-364 below, with accompanying text.

83 As to enemy property, see Oppenheim, International Law (6th ed. Lauterpacht 1940), vol. II, secs. 133-154 (in warfare on land), and secs. 176-200 (in warfare on sea). As to neutral property, see Id. secs. 404-406a, 414-477a. See also footnotes 306 to 364 below, with accompanying text.

84 Oppenheim, International Law (5th ed. Lauterpacht 1937), vol. I, secs. 12, 17-18.

inducements to its observance have operated, such as elements of convenience, moral restraint, a decent respect for the opinions of mankind and fear of such retaliatory self-help as reprisal or war in consequence of violation.85

The details of these international practices have at many points greatly varied 86 and have often been changed under the impact of new conditions.87 Uncertainty and controversy have often resulted 88 and have frequently culminated in actual resort to war.

b. How Far International Law Is Binding as Authority in the Courts of the United States

To what extent international law is binding upon the United States is a question which cannot be answered without a little qualifying explanation.

Congress by enacting certain limited special jurisdictional statutes authorizing the Court of Claims to take cognizance of certain designated claims which had arisen under international law has at times directly recognized international obligations. Ratification of a treaty by the United States generally necessitates a recognition of international rights and duties. The executive branch of the Government, too, has often claimed rights under international law 90 and at times has acknowledged obligations thereunder.o1

The Constitution of the United States, in express language, recognizes but not does not define international law, "the law of nations," 92 or deal with its relation to domestic law.

From the standpoint of what actually happens in international relations it may be said that international law cannot be abrogated by domestic legislation, and in event of violation it may perchance be enforced against the violators by the aggrieved nation or nations through such international sanctions as reprisal or war.93

From the standpoint, however, of to what extent international law will be enforced as law in the domestic courts of the United States, the answer is in one respect very different. Congress may effectively legislate otherwise.94

International law is usually recognized as part of our domestic law to be applied by the courts in cases before them in regard to matters to which it is found applicable.95 The theory most commonly underlying such decisions has been that international law is part of the

85 Id., secs. 9-10, 148-156. See also Id. (6th ed. Lauterpacht 1940), vol. II, secs. 26–52; Hindmarsh, Self-Help in Time of Peace (1932), 26 Am. Jour. Int'l. Law, 315. Se Id. (5th ed. Lauterpacht 1937), vol. I, secs. 26-29d.

87 Id. (6th ed. Lauterpacht 1940), vol. II, sec. 214 e. a. (aerial attack), sec. 194a (submarines), sec. 113 (gas warfare).

88 See footnotes 86 and 87 above. See also Id. secs. 379-382 (what is an effective blockade).

89 The Ship Rose, 36 Ct. Cls. 290, 302 (1901); Royal Holland Lloyd v. United States, 73 Ct. Cls. 722 (1931), also reported in full in (1932) 26 Am. Jour. Int'l. Law, 399-419. See also Potter, The Relative Authority of International Law and National Law in the United States (1925), 19 Am. Jour. Int'l. Law 315: Sprout, Theories as to the Applicability of International Law in the Federal Courts of the United States (1932), 26 Am. Jour. Int'l. Law 280, at p. 287-288.

90 Report of Committee on Law Protecting American Citizens in Foreign Countries of the Section of International and Comparative Law of the American Bar Association (1939). The Basic Field Manual, War Department, Rules of Land Warfare (1940), pp. 1, 2. See also letter of Secretary of State Hughes to Norwegian Minister in (1923) 17 Am. Jour. Int'l Law 287, 988.

02 Article I, sec. 8, cl. 10.

93 Oppenheim. International Law (5th ed. Lauterpacht 1937), vol. I, secs. 148-156. 94 See footnote 93 above, and footnote 97 below.

95 The Paquete Habana, 175 U. S. 677, 700 (1900).