RELATIONS OF INDEPENDENT DEPARTMENTS. 427 



arid water, limit the size or disposition of military forces, make 

 rules for the conduct of land and naval forces in war, annex or dis- 

 pose of territory, in fact there are very few of the enumerated 

 powers of Congress which have not been the subject of treaty. It 

 has been suggested that the treaty power lacks " constitutional com- 

 petency " to act on these subjects. To this the answer of Calhoun 

 seems adequate : ^^ 



"If this be the true view of the treaty-making power, it may be truly 

 said that its exercise has been one continual series of habitual and uninter- 

 rupted infringements of the Constitution. From the beginning and through- 

 out the whole existence of the Federal Government it has been exercised 

 constantly on commerce, navigation, and other delegated powers." 



The court has often recognized this overlapping and considering 

 that acts of Congress " made in pursuance of " the Constitution, and 

 treaties " made under the authority of the United States " are 

 both the supreme law of the land, has regarded them of equal 

 validity and applied the most recent in date in case a conflict is too 

 definite to reconcile.^® Thus, according to the law neither treaty- 

 making power nor Congress is limited by the previous exercises of 

 concurrent power by the other. In practice, however, it has been 

 recognized that Congress ought not to violate treaties at will and 

 that the treaty-making power ought not to altet congressional 

 policies at random. The fact that the President and Senate par- 

 ticipate in both treaty-making and legislation tends to minimize such 

 conflicts, but in some cases they have occurred. Thus the Chinese 

 exclusion acts of 1889 were in conflict with the Burlingame treaty of 

 1868. Congress, however, has usually refrained from impairing 

 treaties by legislation and if treaties were -found to conflict with 

 proposed legislative policies, has advised the President to negotiate 

 modifications in the treaty. As such negotiation and ratification 

 of the resulting treaty is always discretionary with the President 

 and Senate, the practice means that changes are in fact brought 

 about by concert of Congress and the treaty-making power.^^ 



15 Moore, Digest, 5 : 164. 



16 Head Money Cases, 112 U. S. 580; Chinese Exclusion Cases, 130 U. S. 

 58; U. S. V. The Peggy, i Cranch 103. 



1'' See La Follette Seaman's Act of 1915 and Jones Merchant Marine Act 

 of 1920, supra, sees. 184, 187. 



