WRIGHT— LIMITATIONS UPON NATIONAL POWERS. 199 



Constitution gives to Congress and to the treaty-making power 

 considerable authority to designate or even create organs for the 

 exercise of judicial and executive power*- and such provision is 

 not considered incompatible with the theory of separation of 

 powers, but no organs other than those specifically empowered 

 thereto by the Constitution can be authorized to exercise legislative 

 power. 



" The Legislative," said John Locke, " neither must nor can 

 transfer the power of making laws to anybody else, or place it 

 anywhere but where the people have." *^ 



However, this does not mean that all powers which the Legis- 

 lature might exercise are incapable of delegation. It is well 

 established that Congress can delegate to the President or other 

 authority power to decide when** and where*^ the conditions exist 

 which are to bring its enacted policy into operation, and the 

 method*** by which such a policy is to be administered. The legis- 

 lative power, which cannot be delegated, is not confined to the 

 making of permanent laws but includes such political powers of 

 Congress as appropriating money and declaring war.*'' Further- 

 more, "legislative power" is not confined to the powers of Congress 

 but includes political powers given by the Constitution to other 

 organs. Thus the treaty-making power exercises legislative power 

 which cannot be delegated since its acts, by Article VI, constitute 



42 Congress has power to create inferior federal courts (Constitution, I, 

 sec. 8, cl. 9; III, sec. i), to regulate their jurisdiction and the appellate juris- 

 diction of the Supreme Court (III, sec. 2, cl. 2), to create "offices" (II, 

 sec. 2, cl. 2), and to create and regulate a military and naval establishment 

 (I, sec. 8, cl. 12-16). See also McCulloch v. Md., 4 Wheat. 316, holding 

 that Congress may create other instrumentalities, necessary and proper for 

 carrying out constitutional powers. The treaty power may provide for 

 courts. In re Ross, 140 U. S. 453; The Konigin Luise, 184 Fed. 170 (1910) ; 

 Wright, Am. Jl. Int. Law, 12 : 70. See also in^ra, sees. 225, 226. 



43 Treatise on Civil Government, Works, vol. 5, sec. 142, quoted Cooley, 

 Constitutional Limitations, 6th ed., p. 137. 



44 Martin v. Mott, 12 Wheat. 19; Field v. Clark. 143 U. S. 649 (1892). 



45 Dalby v. Wolf, 14 Iowa 228 (1862). Legislative power may be dele- 

 gated to local bodies. State v. Noyes, 30 N. H. 279. 



46 Morrill v. Jones, 106 U. S. 466; Ex Parte Killock, 165 U. S. 526. 



47 The phraseology of the clauses conferring these powers indicates that 

 they cannot be delegated. Constitution, I, sec. 8, cl. 2; sec. 9, cl. 7. 



