398 WRIGHT— POWER TO ESTABLISH 



such as diplomatic and consular offices, consular courts for exer- 

 cising American jurisdiction abroad or foreign jurisdiction in the 

 United States, and international courts, councils, and administrative 

 unions. Doubtless in many cases Congress would have to create 

 and provide for the necessary " offices " under the United States 

 before such treaty-established organs could become effective, but 

 such a need of congressional cooperation is not a legal limitation 

 upon the treaty power. Legally the treaty power seems to be lim- 

 ited in its power to create and organize instrumentalities not defined 

 by the Constitution itself, only by the condition that the instrumen- 

 tality be bona fide of international interest and by the conditions 

 stated above applicable to the power of Congress.^" 



227. The Power of the President to Create Offices and Agencies. 



The President and the courts are not specifically endowed with 

 power to create new instrumentalities for exercising national powers. 

 In the Neagle case, the Supreme Court went far toward recognizing 

 a power in the President to delegate executive authority to persons 

 not occupying a congressionally established " office." This, how- 

 ever, should probably be interpreted no farther than a recognition 

 that the President may create subordinate agencies, not strictly 

 " offices " necessary for performing executive functions.^^ The 

 President's authorization of personal " agents " for conducting diplo- 

 matic negotiations and representing the United States in interna- 

 tional conferences is justified under the same inherent power. Leg- 

 islative bodies and courts seem to have a similar inherent power to 

 create subordinate positions by merely making appointments thereto. 

 In most cases the nature and necessity of such subordinate positions 

 has been established by practice and tradition, the issue being raised 

 rather as to the inherent power to make appointments thereto, than 

 as to the inherent power to create the position.^^ 



In addition to such essential subordinate positions, the President, 



as representative authority of the nation, has recognized and applied 



10 7n re Ross. 140 U. S. 453. 



"/n re Neagle, 135 U. S. i ; Willoughby, Constitutional Law, 1155. 



^- Infra, sec. 228 (3). 



