INSTRUMENTALITIES FOR FOREIGN RELATIONS. 397 



of government. Congress has exclusive power to create "offices" 

 under the United States aside from those established by the Con- 

 stitution itself, " to raise and support armies " and " to provide and 

 maintain a navy." - It also has power, concurrent in part with that 

 of the President, " to make rules for the government and regulation 

 of the land and naval forces "; ^ and power, concurrent in part with 

 that of the states, though supreme when exercised, to organize the 

 militia.* Thus Congress has adequate power to create any instru- 

 mentality which may be " necessary and proper " for the exercise 

 of executive power. 



Hardly less complete is its power to create courts. It may " con- 

 stitute tribunals inferior to the Supreme Court " for exercising the 

 judicial power of the United States outlined in Article III of the 

 Constitution and may regulate their jurisdiction and the appellate 

 jurisdiction of the Supreme Court.^ But it may also organize courts 

 in the territories'^ or abroad^ and administrative courts in the United 

 States which hear and decide cases but do not exercise the judicial 

 power described in Article III.^ 



Practically the only legal limitation upon the power of Congress 

 to create and organize instrumentalities not defined by the Consti- 

 tution itself, for the exercise of national powers, is (i) that it may 

 not itself exercise judicial or executive power, (2) that it may not 

 delegate legislative power, (3) that it may not vest non-judicial 

 power in the federal courts, though it may in administrative courts, 

 and (4) that it may not burden state officers, though it may vest 

 in them powers exercisable at discretion.^ 



226. The Power to Create Offices and Agencies by Treaty. 



The treaty-making power may provide instrumentalities conven- 

 ient for carrying out powers in the legitimate scope of treaties, 



2U. S. Constitution, Art. II, sec. 2, cl. 2; I, sec. 8, cl. 12, 13. 



3 Ibid., I, sec. 8, cl. 14 ; Ex parte Milligan, 4 Wall. 2. 



* Ibid., I, sec. 8, cl. 16; Houston v. Moore. 5 Wheat, i. 



^ Ibid., I, sec. 8, cl. 9; III. sec. 2, cl. 2; Ex parte McCardle, 7 Wall. 506. 



^ Am. Ins. Co. v. Canter, i Pet. 511. 



7 In re Ross, 140 U. S. 453. 



8 Gordon v. U. S., 2 Wall. 561 ; Willoughby, op. cit., p. 1277. 



9 Supra, sec. 60 ; Gordon v. U. S., 2 Wall. 561 ; Ky. v. Dennison, 24 How. 

 66; Willoughby, Am. Constitutional System, p. 123. 



