POWER IN THE CONSTITUTIONAL SYSTEM. 227 



therefore, that the foreign relations power in common with all other 

 national powers, exists only as far as (i) expressly delegated by 

 the Constitution, (2) implied from expressly delegated powers, or 

 (3) implied as a "resultant" from a group of express or implied 

 powers.^^ 



B. Essential Nature of the Foreign Relations Power. 



74. Controversy as to Nature of Foreign Relations Power. 

 Since the beginning of the go\«ernment under the Constitution 



there has been a controversy as to the essential nature of the for- 

 eign relations power. One school has contended that such powers 

 are essentially executive and hence all delegations of power to 

 Congress in this field must be strictly construed while delegations 

 of power to the President may be liberally construed. Some have 

 gone even farther and in view of the constitutional statement that 

 " The Executive power shall be vested in a President of the United 

 States of America " have contended that all foreign relations 

 powers not otherwise expressly delegated are by this general grant 

 of executive power vested in the President. Another school has 

 taken the reverse view, supporting a liberal legislative power and a 

 narrow construction of executive powers. 



75. Foreign Relations Power not Essentially Judicial. 



The courts have been perfectly clear that these powers are 

 not of an essential judicial nature, and consequently have con- 

 sidered themselves incompetent to decide them. They have usually 

 called them ** political questions " and have accepted the decisions of 

 the political branches of the government without question.^* 



13 Unquestionably the enumerated powers relating to foreign affairs, either 

 by imph'cation or combination, will permit Congress to pass practically any 

 laws properly within that field. Consequently in practice this theory of con- 

 gressional power differs little from the theory asserting that congressional 

 powers can be deduced from national sovereignty in foreign affairs. The 

 difficulty of the latter theory, however, lies in the fact that a recognition of 

 congressional sovereignty in foreign affairs would seem to exempt Congress 

 from constitutional limitations arising from individual rights, states' rights 

 and the separation of powers in this field. " Sovereignty " is not only pleni- 

 tude of power, but also absence of limitation. See supra, note S- 

 1* Infra, sec. 107. 



PROC. AMER. PHIL. SOC, VOL. LX., P, MARCH 9, I922. 



