322. WRIGHT— POWER TO MAKE AGREEMENTS. 



existing treaty, but such resolutions may be ignored by the Pres- 

 ident.^^ 



1 60. The Courts Cannot Make International Agreements. 



The courts, also, are devoid of treaty-making power : ^^ 



" This court," said Justice Story, " does not possess any treaty-making 

 power. That power belongs, by the Constitution, to another department of 

 the government; and to alter, amend, or add to any treaty, by inserting any 

 clause, whether small or great, important or trivial, would be on our part 

 an usurpation of power, and not an exercise of judicial functions." 



Courts must construe and interpret treaties in applying them to 

 cases, but such constructions cannot apply to political question or 

 supply omissions. ^^ 



A. The Power to Make Executive Agreements. 



161. The Obligation of Executive Agreements. 



The President with advice and consent of two-thirds of the 

 Senate may make any agreement whatever, on a subject suitable 

 for international negotiation and not violative of constitutional 

 limitations. This treaty-making power is not limited by the Pres- 

 ident's independent power of making agreements, but the latter power 

 unquestionably exists. With respect to such Presidential agreements, 

 the questions arise: (i) What subject matter may they cover? 



1^ Infra, sec. 203. Congress has undertaken regulation of Indian affairs 

 formerly vested in the treaty-making power. " During the first eighty 

 years of government under the Constitution, agreements with the Indian 

 Tribes were made exclusively by the President and the Senate, in the 

 exercise of the treaty-making power. The passage of the act of 1871 was 

 strongly opposed by certain members of the House as well as of the Senate, 

 on the ground that it involved an infringement of the treaty-making power 

 vested in the President and the latter body. It was admitted that if the 

 President should undertake to make a treaty with the Indians, Congress 

 could not interfere with his so-doing, by and with the advice and consent of 

 the Senate, but it was, on the other hand, maintained that Congress had the 

 power to declare whether ' the tribes were independent nations for the 

 purposes of treaty-making, and to render its declaration effective by refusing 

 to recognize any subsequent treaties with them ; and this view prevailed. 

 (See especially, Cong. Globe, 41st Cong., 3d Sess., 1870-1871, part i, pp. 

 763-765; part 3, pp. 1821-1825.) " Moore, Digest', 5: 220. 



i'' The Amiable Isabella, 6 Wheat, i, 71-73. 



18 Ibid., and supra, sec. 107. 



