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CRS Annotated Constitution

Article II -- Table of ContentsPrev | Next

The Case of Cuba.—The question of Congress’ right also to recognize new states was prominently raised in connection with Cuba’s final and successful struggle for independence. Beset by numerous legislative proposals of a more or less mandatory character, urging recognition upon the President, the Senate Foreign Relations Committee, in 1897, made an elaborate investigation of the whole subject and came to the following conclusions as to this power: “The ‘recognition’ of independence or belligerency of a foreign power, technically speaking, is distinctly a diplomatic matter. It is properly evidenced either by sending a public minister to the Government thus recognized, or by receiving a public minister therefrom. The latter is the usual and proper course. Diplomatic relations with a new power are properly, and customarily inaugurated at the request of that power, expressed through an envoy sent for the purpose. The reception of this envoy, as pointed out, is the act of the President alone. The next step, that of sending a public minister to the nation thus recognized, is primarily the act of the President. The Senate can take no part in it at all, until the President has sent in a nomination. Then it acts in its executive capacity, and, customarily, in ‘executive session.’ The legislative branch of the Government can exercise no influence over this step except, very indirectly, by withholding appropriations. . . . Nor can the legislative branch of the Government hold any communications with foreign nations. The executive branch is the sole mouthpiece of the nation in communication with foreign sovereignties.

“Foreign nations communicate only through their respective executive departments. Resolutions of their legislative departments[p.546]upon diplomatic matters have no status in international law. In the department of international law, therefore, properly speaking, a Congressional recognition of belligerency or independence would be a nullity. . . . Congress can help the Cuban insurgents by legislation in many ways, but it cannot help them legitimately by mere declarations, or by attempts to engage in diplomatic negotiations, if our interpretation of the Constitution is correct. That it is correct . . . [is] shown by the opinions of jurists and statesmen of the past.”584 Congress was able ultimately to bundle a clause recognizing the independence of Cuba, as distinguished from its government, into the declaration of war of April 11, 1898, against Spain. For the most part, the sponsors of the clause defended it by the following line of reasoning. Diplomacy, they said, was now at an end, and the President himself had appealed to Congress to provide a solution for the Cuban situation. In response, Congress was about to exercise its constitutional power of declaring war, and it has consequently the right to state the purpose of the war which it was about to declare.585 The recognition of the Union of Soviet Socialist Republics in 1933 was an exclusively presidential act.

The Power of Nonrecognition.—The potentialities of nonrecognition were conspicuously illustrated by President Woodrow Wilson when he refused, early in 1913, to recognize Provisional President Huerta as the de facto government of Mexico, thereby contributing materially to Huerta’s downfall the year following. At the same time, Wilson announced a general policy of nonrecognition in the case of any government founded on acts of violence, and while he observed this rule with considerable discretion, he consistently refused to recognize the Union of Soviet Socialist Republics, and his successors prior to President Franklin D. Roosevelt did the same. The refusal of the Hoover administration to recognize the independence of the Japanese puppet state of Manchukuo early in 1932 was based on kindred grounds. Similarly, the nonrecognition of the Chinese Communist Government from the Truman Administration to President Nixon’s de facto recognition through a visit in 1972—not long after the People’s Republic of China was admitted to the United Nations and the exclusion of Taiwan—proved to be[p.547]an important part of American foreign policy during the Cold War.586

Congressional Implementation of Presidential Policies

No President was ever more jealous of his prerogative in the realm of foreign relations than President Woodrow Wilson. When, however, strong pressure was brought to bear upon him by Great Britain respecting his Mexican Policy, he was constrained to go before Congress and ask for a modification of the Panama Tolls Act of 1911, which had also aroused British ire. Addressing Congress, he said, “I ask this of you in support of the foreign policy of the Administration. I shall not know how to deal with other matters of even greater delicacy and nearer consequence if you do not grant it to me in ungrudging measure.”587

The fact is, of course, that Congress has enormous powers, the support of which is indispensable to any foreign policy. In the long run, Congress is the body that lays and collects taxes for the common defense, that creates armies and maintains navies, although it does not direct them, that pledges the public credit, that declares war, that defines offenses against the law of nations, that regulates foreign commerce; and it has the further power “to make all laws which shall be necessary and proper”—that is, which it deems to be such—for carrying into execution not only its own powers but all the powers “of the government of the United States and of any department or officer thereof.” Moreover, its laws made “in pursuance” of these powers are “supreme law of the land,” and the President is bound constitutionally to “take care that” they “be faithfully executed.” In point of fact, congressional legislation has operated to augment presidential powers in the foreign field much more frequently than it has to curtail them. The Lend–Lease Act of March 11, 1941588 is the classic example, although it only brought to culmination a whole series of enactments with which Congress had aided and abetted the administration’s foreign policy in the years between 1934 and 1941.589 Disillusionment with presidential policies in the context of the Vietnamese conflict led Congress to legislate restrictions, not only with respect to the discretion of the President to use troops abroad in the absence of a declaration of[p.548]war, but also limiting his economic and political powers through curbs on his authority to declare national emergencies.590 The lesson of history, however, appears to be that congressional efforts to regain what is deemed to have been lost to the President is intermittent, whereas the presidential exercise of power in today’s world is unremitting.591

The Doctrine of Political Questions

It is not within the province of the courts to inquire into the policy underlying action taken by the “political departments”— Congress and the President—in the exercise of their conceded powers. This commonplace maxim is, however, sometimes given an enlarged application, so as to embrace questions as to the existence of facts and even questions of law, which the Court would normally regard as falling within its jurisdiction. Such questions are termed “political questions,” and are especially common in the field of foreign relations. The leading case is Foster v. Neilson,592 where the matter in dispute was the validity of a grant made by the Spanish Government in 1804 of land lying to the east of the Mississippi River, and in which there was also raised the question whether the region between the Perdido and Mississippi Rivers belonged in 1804 to Spain or the United States.

Chief Justice Marshall held that the Court was bound by the action of the political departments, the President and Congress, in claiming the land for the United States. He said: “If those departments which are intrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its right of dominion over a country of which it is in possession, and which it claims under a treaty;[p.549]if the legislature has acted on the construction thus asserted, it is not in its own courts that this construction is to be denied. A question like this, respecting the boundaries of nations, is, as has been truly said, more a political than a legal question, and in its discussion, the courts of every country must respect the pronounced will of the legislature.”593 The doctrine thus clearly stated is further exemplified, with particular reference to presidential action, by Williams v. Suffolk Ins. Co.594 In this case, the underwriters of a vessel which had been confiscated by the Argentine Government for catching seals off the Falkland Islands, contrary to that Government’s orders, sought to escape liability by showing that the Argentinean Government was the sovereign over these islands and that, accordingly, the vessel had been condemned for willful disregard of legitimate authority. The Court decided against the company on the ground that the President had taken the position that the Falkland Islands were not a part of Argentina. “[C]an there be any doubt, that when the executive branch of the government, which is charged with our foreign relations, shall, in its correspondence with a foreign nation, assume a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department? And in this view, it is not material to inquire, nor is it the province of the court to determine, whether the executive be right or wrong. It is enough to know, that in the exercise of his constitutional functions, he had decided the question. Having done this, under the responsibilities which belong to him, it is obligatory on the people and government of the Union.

“If this were not the rule, cases might often arise, in which, on most important questions of foreign jurisdiction, there would be an irreconcilable difference between the executive and judicial departments. By one on these departments, a foreign island or country might be considered as at peace with the United States; whilst the other would consider it in a state of war. No well–regulated government has ever sanctioned a principle so unwise, and so destructive of national character.”595 Thus, the right to determine the boundaries of the country is a political function,596 as is also the right to determine what country is sovereign of a particular region,597 to determine whether a community is entitled under international law to be considered a belligerent or an independent state,598 to[p.550]determine whether the other party has duly ratified a treaty,599 to determine who is the de jure or de facto ruler of a country,600 to determine whether a particular person is a duly accredited diplomatic agent to the United States,601 to determine how long a military occupation shall continue in fulfillment of the terms of a treaty,602 to determine whether a treaty is in effect or not, although doubtless an extinguished treaty could be constitutionally renewed by tacit consent.603


584 S. Doc. No. 56, 54th Congress, 2d Sess. (1897), 20–22.
585 Said Senator Nelson of Minnesota: “The President has asked us to give him the right to make war to expel the Spaniards from Cuba. He has asked us to put that power in his hands; and when we are asked to grant that power—the highest power given under the Constitution—we have the right, the intrinsic right, vested in us by the Constitution, to say how and under what conditions and with what allies that war– making power shall be exercised.” 31 Rec.3984 (1898).
586 President Carter’s termination of the Mutual Defense Treaty with Taiwan, which precipitated a constitutional and political debate, was perhaps an example of nonrecognition or more appropriately derecognition. On recognition and nonrecognition policies in the post– World War II era, see Restatement, Foreign Relations, op. cit., n.262, §§ 202, 203.
587 1 Messages and Papers of Woodrow Wilson, A. Shaw ed. (New York: 1924), 58.
588 55 Stat. 31 (1941).
589 E. Corwin, op. cit., n.44, 184–193, 423–425, 435–436.
590 Legislation includes the War Powers Resolution, P.L. 93– 148, 87 Stat. 555 (1953), 50 U.S.C. §§ 1541 –1548; the National Emergencies Act, P.L. 94–412, 90 Stat. 1255 (1976), 50 U.S.C. §§ 1601 –1651 (establishing procedures for presidential declaration and continuation of national emergencies and providing for a bicameral congressional veto); the International Emergency Economic Powers Act, P.L. 95–223, 91 Stat. 1626 (1977), 50 U.S.C. §§ 1701 – 1706 (limiting the great economic powers conferred on the President by the Trading with the Enemy Act of 1917, 40 Stat. 415, 50 U.S.C. App. Sec. 5(b), to times of declared war, and providing new and more limited powers, with procedural restraints, for nonwartime emergencies); and see the Foreign Sovereign Immunities Act of 1976, P.L. 94–583, 90 Stat. 2891 , 28 U.S.C. §§ 1330 , 1602–1611 (removing from executive control decisions concerning the liability of foreign sovereigns to suit).
591 “We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 654 (1952) (Justice Jackson concurring). For an account of how the President usually prevails, see H. Koh, The National Security Constitution: Sharing Power after the Iran–Contra Affairs (New Haven: 1990).
592 2 Pet. (27 U. S.) 253 (1829).
593 Id., 308.
594 13 Pet. (38 U.S.) 415 (1839).
595 Id., 420.
596 Foster v. Neilson, 2 Pet. (27 U.S.) 253 (1829).
597 Williams v. Suffolk Ins. Co., 13 Pet. (38 U.S.) 415 (1839).
598 United States v. Palmer, 3 Wheat. (16 U.S.) 610 (1818).
599 Doe v. Braden, 16 How. (57 U.S.) 635, 657 (1853).
600 Jones v. United States, 137 U.S. 202 (1890); Oetjen v. Central Leather Co., 246 U.S. 297 (1918).
601 In re Baiz, 135 U.S. 403 (1890).
602 Neely v. Henkel, 180 U.S. 109 (1901).
603 Terlinden v. Ames, 184 U.S. 270 (1902); Charlton v. Kelly, 229 U.S. 447 (1913).
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