354 WRIGHT— POWER TO MAKE POLITICAL DECISIONS. 



incapable of execution according to its intent, or by some decision in a prize 

 cause or otherwise, could give rise to a war with a foreign power, yet no one 

 would claim that the judiciary had the power to declare war." lo 



Though the constitutional fathers doubtless had the purpose as- 

 cribed to them in this Senate report, yet it is by no means true that 

 they succeeded in keeping the powers of the various departments 

 from overlapping in the field of foreign affairs. An illustration is 

 furnished by the power to regulate the landing of submarine cables. ^^ 



"I am of the opinion," wrote the Acting Attorney General in 1898, "that 

 the President has the power, in the absence of legislative enactment, to con- 

 trol the landing of foreign submarine cables." But "the Executive permis- 

 sion to land a cable is, of course, subject to subsequent congressional action." 



The President as Chief Executive, Commander-in-Chief and the 

 representative organ, seems to have sufficient power to make all 

 political decisions in foreign affairs not exclusively vested in 

 Congress or the treaty-making power and not conflicting with in- 

 ternational law, treaty or existing act of Congress. 



Congress, on the other hand, can make political decisions in for- 

 eign affairs so far as it can bring them under its express, implied 

 or resultant powers, the most important of which in this connection 

 are the powers to declare war, to annex territory, to naturalize 

 aliens, to regulate commerce and means of conveyance and com- 

 munication with foreign nations, and to regulate immigration and 

 exclude or expel aliens. When Congress has validly acted, its act 

 binds the President except in so far as it encroaches upon his con- 

 stitutional discretion to receive and commission diplomatic officers 

 and to act as Commander-in-Chief. 



The courts have no power to make political decisions whatever. 

 Their functions are purely judicial and when confronted with a 

 political question they accept the decision of the political depart- 

 ments of the government. ^^ It results that judicial precedents are 

 not of great assistance in determining the constitutional line separat- 

 ing the powers of the President from those of Congress in this 

 field. 



10 Sen. Doc. No. 56 (cited supra, note 7), p. 4. 



11 Moore, Digest, 2: 463. See also infra, sees. 245-248. 



12 Supra, sec. 107. 



