The Constitutional Power to Provide for Coercion in a Treaty, 20 December 1918
Source: Lansing Papers, Speeches and Writings, Miscellaneous, 1909-1919, box 76, Manuscripts Division, Library of Congress
In the institution of a League of Nations we must bear in mind the limitations imposed by the Constitution of the United States upon the Executive and the Legislative Branches of the Government in defining their respective powers.
The Constitution confers upon Congress the right to declare war. This right, I do not believe, can be delegated and it certainly cannot be taken away by treaty. The question arises, therefore, as to how far a provision in an agreement as to a League of Nations, which imposes on the United States the obligation to employ its military or naval forces in enforcing the terms of the agreement, would be constitutional.
It would seem that the utilization of forces, whether independent or in conjunction with other nations, would in fact by being an act of war create a state of war, which constitutionally can only be done by a declaration of Congress. To contract by treaty, to create a state of war upon certain contingencies arising would be equally tainted with unconstitutionality, and would be null and inoperative.
I do not think, therefore, that, even if it was advisable, any treaty can provide for the independent or joint use of the military or naval forces of the United States to compel compliance with a treaty or to make good a guaranty made in a treaty.
The other method of international coercion is non-intercourse, especially commercial non-intercourse. Would a treaty provision to employ this method be constitutional?
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As to this my mind is less clear. The constitution in delegating powers to Congress includes the regulation of commerce. Does non-intercourse fall within the idea of regulation? Could an embargo be imposed without an act of Congress? My impression is that it cannot be done without legislation and that a treaty provision agreeing in a certain event to impose an embargo against another nation would be void.
Even if Congress was willing to delegate to the Executive for a certain purpose its powers as to making war and regulating commerce, I do not think that it can constitutionally do so. It is only in the event of war that powers conferred by the Constitution on Congress can be so delegated and then only for war purposes. As a state of war would not exist at the time action was required, I do not believe that it could be done, and any provision contracting to take measures of this nature would be contrary to the Constitution and as a consequence void.
But, assuming that Congress possessed the power of delegation, I am convinced that it would not only refuse to do so but would resent such a suggestion because of the fact that both Houses have been and are extremely jealous of their rights and authority.
Viewed from the standpoints of legality and expediency it would seem necessary to find some other method than coercion in enforcing an international guaranty, or else to find some substitute for a guaranty, which would be valueless without affirmation action to support it.
I believe that such a substitute can be found.