this case.60 The court does not offer this as an explanation for its ruling, but it is conceivable that it recognized the Congressmen's special position. Certainly, it can be argued that some standing decisions treat Congressmen more leniently than they do other litigants.1 Analysis also suggests that the Diggs precedent will not be persuasive—it is simply too far divorced from present standing theory to be treated as anything but an aberration. Nevertheless, it is possible that the decision will be rationalized and accepted in the future for litigants in similar special positions.

Although the District and Circuit Courts applied the standing requirements differently, they both agree that the issues involved were not justiciable. Insofar as they were concerned, a decision on the merits in Diggs was made impossible by the political question doctrine. As a general rule courts have felt powerless to decide large questions of basic policy in foreign affairs. As the Supreme Court stated over twenty years ago:

Such decision are wholly confided by our government to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or peril. They are decisions of a kind for which the Judiciary had neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.62 Certainly Diggs is a classic example of this sort of political question. Diggs does "resound with political and foreign policy considerations." 63 Whatever one may think of the merits of the Byrd Amendment, it is still significant that the Congressmen and Senators who voted for it are answerable to the people, while judges are not.

Without denying the importance of Diggs as a domestic legal decision, the overarching significance of the Byrd Amendment is still its devastatingly corrosive impact on the international legal order. In many ways, the United Nations was damaged most severely. As one of the founders of the world body, and its chief patron, the United States has always stressed the importance of collective security. In fact, the United States has sacrificed a great deal in helping to develop the United Nations' enforcement capacities. Thus, the United States decision to violate its commitment seems especially senseless, for it served to undermine a major effort, made with the overwhelming support of the membership, to effectuate the will of the international community. Without presuming that the embargo has been observed in good faith by all other countries, it is significant that only three other countries have formally refused to observe the embargo-Switzerland, Portugal, and South Africa. Switzerland is not a member of the United Nations and as such is not bound by Security Council resolutions. South Africa

60 Charles Diggs, Shirley Chisholm, William Clay, George Collins, John Conyers, Ronald Dellums, Walter Fauntroy. Augustus Hawkins, Ralph Metcalfe, Parren Mitchell, Robert Nix, Charles Rangel, and Louis Stokes. Holtzman v. Schlesinger, 361 F. Supp. 352 (F.D.N.Y. 1973), rev'd, 484 F.2d 1307 (2d Cir. 1973). 62 Chicago and Southern Air Lines v. Waterman S S. Co., 332 U.S. 103 (1948). 63 Civil No. 773-71 at 12.

and Portugal both maintain white minority regimes and comprise, with Southern Rhodesia, the "white redoubt" of Southern Africa.+

On another level, there can be little doubt that the Congressional abrogation damaged the very fabric of international law. Since the time of Woodrow Wilson, the United States has frequently taken the lead in nurturing the law of nations. Our commitment has never been total, but we have exercised a measure of moral authority. The passage of the Byrd Amendment and the President's subsequent acquiesence may not have destroyed our moral authority, but it certainly stands diminished. As a result, we may now find it even more difficult to convince others to abide by their obligations and to respect the rights of other states.

Some observers may be unmoved by the argument that the Byrd Amendment has weakened the force of international law. They may believe that international law is most often invoked in an attempt to construct ex post facto legitimations of pragmatic political acts. Nevertheless, there are other reasons for regretting the passage of the Byrd Amendment. There can be little doubt that it was exceedingly damaging to the United States diplomatically. One obvious example comes to mind:

[T]here are forty-two votes in the United Nations [in Africa]; forty-two votes out of one hundred-thirty-two, and it is terribly important to us from a plain political standpoint.65

More specfically, David Newsom, the Assistant Secretary of State for African Affairs, stated in June 1973:

In my four years as Assistant Secretary the exemption on Rhodesian Sanctions has been the most serious blow to the credibility of our African policy. While you and I in our travels may not encounter strong expressions on this subject, our Ambassadors in certain key countries emphasize the importance of this issue in the basic attitudes of these countries toward us. The fact that we have in African eyes chosen to go counter to a mandatory Security Council resolution and have for our own purposes weakened sanctions suggest to the Africans that we do not attach importance to the institutions and issues of significance to them.66

At this point the reader may wonder what American interests the Byrd Amendment intended to advance. In essence, the Amendment's supporters concentrated on two points-national security and the domestic economy. As they put it, the embargo on Rhodesian chrome had made the United States dangerously reliant on the Soviet Union for supplies of a "strategic material," chrome. Backers of the Amendment also argued that the embargo placed the United States ferrochrome industry at a competitive disadvantage, for "companies in other nations were violating sanctions and using Rhodesian chrome to undercut American producers." 67

64 D. Polan at 2.

65 A remark by the former Representative of the United States to the United Nations George Bush, in March of 1972, after returning from a trip to Africa. Id. at 13. 66 Id. at 14.

7 Id. at iii-iv.

Unfortunately, passage of the Byrd Amendment did not lead to even the limited benefits promised by its proponents. As the Carnegie Endowment Report on Rhodesia has noted, the United States is now more dependent on the Soviet Union for chrome "because the U.S.S.R. lowered its prices and achieved a larger share of the chrome market." 68 In addition, the Amendment has, if any thing, hurt the domestic economy. Relatively little Rhodesian chrome has been imported since the passage of the Amendment, but the "flood" of low cost Rhodesian ferrochrome has badly damaged the viability of the American ferrochrome industry. Two major corporations, Ohio Ferroalloys and Foote Mineral Company, have been forced to suspend ferrochrome operations since the passage of the Byrd Amendment. On top of everything else, the Byrd Amendment cost 758 American jobs.69

It is important to place the court's role in Diggs in proper perspective. During the last twenty years we have come to expect the judiciary to take the lead in areas where the political branches have not fulfilled their responsibilities. Thus in the 1950's and 1960's the Supreme Court brought about change in areas such as civil rights, reapportionment, and criminal procedure. Considering the devastating impact of the Byrd Amendment, it is not surprising that some expected an activist court to step in once again with a curative decision. This was an unrealistic expectation, however, for the courts have been assigned a marginal role by the Constitution in the conduct of foreign affairs. As a result, the Circuit Court could do no more than express its profound disapproval of the Byrd Amendment's "blatant disregard of our treaty undertakings." 70

While the Judiciary has a responsibility to protect democracy's enduring values, it has neither the duty nor the power to play a similar role in the international sphere. The responsibility to nurture and enforce the concepts of international cooperation and international law devolves upon the political branches of government; and neither branch has fulfilled that duty here. The Executive branch was both informed and interested, but it failed to display even its normal degree of leadership. The State Department voiced its opposition to the Amendment, but its efforts to discourage the bill's adoption were not truly effective. Once the bill was passed, the President could have side-stepped its mandate,72 or could even have vetoed it altogether. This would have seemed generally appropriate, for as chief of state and director of American foreign policy, he should be the chief conservator of international law. Yet, he chose to do neither; but. in fact, moved with relative alacrity to issue a general license. His action takes on greater significance in light of his past willingness to veto bills or impound funds when he felt that his discretion was being limited. Clearly, the Byrd Amendment impinged substantially on the President's discretion to make foreign political and economic policy; and yet, in this case, he seemed entirely willing to comply with the Amendment's directions.

68 Id at iv.

69 Id. at 25-26.

70 470 F.2d at 467.

The task of opposing the Amendment fell mainly to Assistant Secretary of State for African Affairs David Newsom.

12 The President could have removed chrome from the list of strategic and critical materials.

Opposition in the Congress was no less ineffective. The bill's supporters, a small cadre of lobbyists and legislators, were quite skillful; and, there was another important factor:

The Byrd Amendment intruded little into the consciousness of most members of Congress. Absenteeism therefore played a large role in deciding the result. The vote in the Senate was close, and much depended on which Senators happened to be there.73

Thus, in passing the Byrd Amendment, a generally listless Congress also failed to fulfill its role as a protector of international law. As a result, it could be argued that the final decision was committed to the President. Nevertheless, both branches must be held responsible for the Byrd Amendment's disastrous impact on American foreign policy, international law, and the development of human rights.

STEWART MILLS REID.

73 D. Polan at 8.

[From the California Law Review, Volume 25, No. 6., September 1937]

THE POWER OF CONGRESS AND THE PRESIDENT IN INTERNATIONAL RELATIONS: THREE RECENT SUPREME COURT DECISIONS

(By Stefan Riesenfeld)

One of the dark spots on the map of federal powers, the features of which have become more and more definite through the incessant explorations of the Supreme Court, is the power of the federal government in the conduct of foreign relations, the most important aspect of which is the treaty power. The scope and structure of this power are vague,1 and it is therefore of great interest that three times during the last year and a half, the Supreme Court had occasion to venture into this seldom invaded territory.

The first occasion was the case of Van Der Weyde v. Ocean Transport Co. Ltd.,2 decided February 3, 1936; the second, that of United States v. Curtiss-Wright Export Corp.,3 handed down December 21, 1936, and the third, the case of United States v. Belmont, decided May 3, 1937. The decisions are widely divergent in their importance and elaboration of reasoning. The first case involved the jurisdiction of the federal courts in a libel suit against a vessel of a Japanese corporation, and the effect of an international treaty upon the jurisdiction; the second concerned the powers of the President of the United States to prohibit the sales of certain goods, such as arms, for the purpose of safeguarding the neutrality of the nation; and the third

1 See (1) Special studies: BUTLER, THE TREATY-MAKING POWER OF THE UNITED STATES (1902); CORWIN, THE PRESIDENT'S CONTROL OF FOREIGN RELATIONS (1917); CRANDALL, TREATIES-THEIR MAKING AND ENFORCEMENT (2d ed. 1916); DEVLIN, THE TREATY POWER UNDER THE CONSTITUTION OF THE UNITED STATES (1908); MATHEWS, AMERICAN FOREIGN RELATIONS, CONDUCT AND POLICIES (1928); MITCHELL, STATE INTERESTS IN AMERICAN TREATIES (1936); WILCOX, THE RATIFICATION OF INTERNATIONAL CONVENTIONS (1935); WRIGHT, THE CONTROL OF AMERICAN FOREIGN RELATIONS (1922); RESEARCH IN INTERNATIONAL LAW, Harvard Law School (1935) Part III, LAW OF TREATIES; Butler, Limitations of the Treaty-Making Power of the United States in Matters Coming Within the Jurisdiction of the States (1929) 23 PROC. AM. SOC. INT. LAW 176: Foster, The Treaty-Making Power Under the Constitution (1901) 11 YALE L. J. 69; Henry, When Is a Treaty SelfExecuting (1929) 27 MICH. L. REV. 776; Lenoir, Treaties and the Supreme Court (1933) 1 U. OF CHI. L. REV. 702; Moore, Treaties and Executive Agreements (1905) 20 POL. SCI. Q. 385; Nielsen. Our Methods of Giving Effects to International Law and Treaties (1934) 20 A.B.A.J. 503; Scott, Treaty-Making Under the Authority of the United States (1934) 28 PROC. AM. SOC. INT. LAW 2; Wilson, International Law and the Constitution (1933) 13 B. U. L. REV. 234, 462; (2) General works on constitutional law: RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA (1825) 56 ff., 314; SERGEANT, CONSTITUTIONAL LAW (1822), especially at p. 391; 3 STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES (1833) 351 ff; 2 TUCKER, THE CONSTITUTION OF THE UNITED STATES (1899) 720; 2 WATSON, THE CONSTITUTION OF THE UNITED STATES (1910) 948 ff WILLIS, CONSTITUTIONAL LAW OF THE UNITED STATES (1936) 427; 1 WILLOUGHBY, THE CONSTITUTIONAL LAW OF THE UNITED STATES (2d ed. 1929) 513 fr. For a general bibliography see LIBRARY OF CONGRESS, LIST OF REFERENCES ON THE TREATY-MAKING POWER (1920).

2 297 U. S. 114.

$ 299 U. S. 304.

481 L. Ed. Adv. Op. 715.