We have a Constitution which would be reduced to utter chaos if you carried each power out to a dryly logical extreme. We have built into it many potentials for crises, but we have managed to avoid them. I think the thing to do is for the House of Representatives to assert its prerogative in this matter, take the case to the people of the United States who will, I am sure, agree with that position, whatever they think about the treaty, and use the power of the purse as appropriate in the matter. But I think it would be a genuine constitutional crisis, and I think it is up to the House, too.

Mr. NONNENMACHER. Might I ask then, if the treaty already has been ratified and the House refuses to take any action whatsoever in implementing the treaty, not just in appropriation of funds, but even in setting up the Panama Canal Commission-by not even taking step one, I believe it could be asserting its authority-what would the status of the Canal Zone be? Would that property indeed have been ceded to Panama, or would it remain ours because the treaty is shown to be unimplementable?

There is a difference of opinion among those of us who oppose the treaty altogether as to what would be the case, and I would like to have you enlighten us.

Professor RICE. Unfortunately, I do not think you have a clear answer. There is reason to say that, for example, with respect to the appropriations power, there is language in court decisions saying that other countries have to understand that when we make a treaty, that it is up to the Congress to do the appropriating, and they just have to understand that. It is an unwritten term of that treaty. Perhaps this should be treated in the same light, that the Republic of Panama should understand and should have been held to understand that when the United States makes a treaty, that is the President and Senate makes a treaty, it makes it subject to the other provision of the Constitution. So you would have a treaty without implementing legislation and I think, I suppose, without any authority whatsoever. I do not offhand think of anything which would give me a clear answer on this, but I would suppose that what you would have is the endurance of the existing situation unless it is properly changed by a change which is clearly constitutional. And here again it is not a clear case, but the House of Representatives has a duty to interpret the Constitution just as much as the Senate and the Supreme Court. I think if you had that impasse that the proper position to take would be that there had been no proper treaty and, in effect, that there have been no alienation of that property in the Canal Zone. But I am not sure of that. I think we have to let the chips fall where they may.

Mr. NONNENMACHER. Thank you very much.

The CHAIRMAN. Mr. Bonior.

Mr. BONIOR. Professor Rice, do you have a position on the treaty itself, and if you do, would you care to share that?

Professor RICE. Yes.

My position happens to be contrary to Professor Berger's. I happen to be opposed to the treaty.

The CHAIRMAN. In its present form?

Professor RICE. That is correct. I think I am justified in saying, and I hope I am justified in saying that if my position on the merits of the treaty were opposite that I would still be here testifying as I have, and that is why I admire Professor Berger's testimony because he is, as he said, is in favor of the treaty in general. I happen to be opposed to it, and I hope that were my position on the merits were differently stated that I would be down here testifying because we have a system which depends on the maintenance of this delicate balance of separation of powers. And I think this is a clear threat to it which, once it is accomplished, will be carried out to extremes and will be pursued into other areas, greatly unbalancing the existing system.

Mr. BONIOR. Do you foresee a decision on this question that we have been discussing this morning applicable in the very near future to any treaties that may indeed arise in the Congress?

I am thinking specifically of SALT or other treaties that we may be dealing with or the Senate may be dealing with.

Professor RICE. There are many possible applications to this, applications involving the power of Congress with reference to the SALT treaties, the power of Congress over the Armed Forces, the power of Congress involving military appropriations, et cetera. These are certainly possible applications of this. I think I would be remiss if I sat here and conjured a parade of horrible ponderables, that if this occurs, this, this and the other thing are going to happen. But I do believe it is fair to say that this is a precedent which once set in motion will be very difficult to contain.

We have seen, I might add, that we have seen what remarkable use can be made in a partisan context, I do not mean political party context but in an adversary context, in this matter, we have seen what remarkable use can be made by the supporters of the treaty in this context of very fragile, indeed nonexisting precedents.

Now, what use do you think would be made if they got a real precedent where the Congress had actually agreed and had gone along with the program? You could imagine what testimony you would get in a future case from the Department of State and the Department of Justice. I think that we are talking about something which would be extremely difficult to contain, and without trying to conjure up specifics, I think that is bad enough.

Mr. BONIOR. Thank you.

The CHAIRMAN. Mr. Hughes.

Mr. HUGHES. I am interested, Professor Rice; prior to the time that the article IV issue came into such contention over the Panama Canal Treaty, did you have occasion to look at that particular provision in such a context.

Professor RICE. The article IV provision?

Mr. HUGHES. Yes. Did you have occasion to look at it in the present context?

Professor RICE. No, not in the context of the disposing of property. Mr. HUGHES. The question of current jurisdiction.

Professor RICE. No. I had contacts in the past to go into the provisions for making rules and regulations, but that is a different story.

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No, my interest-this is the first time, you know, that I have professionally come to grips with this question over the past 4 months or so; that is, the specific question of article IV, section 3, clause 2, vis-a-vis the treaty power.

Mr. HUGHES. I would suspect that if in fact we were not talking about such a controversial treaty, that a disposition of U.S. property would be submitted to Congress as a matter of course.

Professor RICE. Yes, I think that is fair to say.

Mr. HUGHES. Both you and Dr. Berger in your statements to the effect that the branch of Government closest to the people should perhaps be passing upon the disposition of such property make persuasive arguments. It is possible that if all the facts were aired by both houses of the Congress and particularly that branch that is closest to the people, perhaps there would be a lot more support generated for the treaties.

Professor RICE. That may be. That is one of the things, you see, that we lose sight of. Because this was mentioned by Dr. Berger in his testimony and in his book; and that is, that we are tending toward a result oriented jurisprudence and we are afraid to follow procedures. Now, as a lawyer, I think that it is important to adhere to procedures and you adhere to procedures whatever the result is that comes out of them if they are the properly established procedures. So we have gotten into a frame of mind here in many respects where what we do is take the course which will bring us the short-term pragmatic result; and I think that is what is happening here in this treaty. I am not at all sure. I have no idea what would happen if this were submitted to the House. Maybe the treaty would gain great favor. Mr. HUGHES. In all fairness to the executive branch, I suspect that the administration is just as interested in making sure that its prerogatives in perhaps negotiating treaties that are self-executing is also at stake.

Would not you think that that is also a part of the interest of the Executive?

Professor RICE. Very definitely, yes. But when we are talking about this particular collision between article IV, section 3, and the treaty power, the point you mention right at the beginning, I think, is relevant, that if this were a noncontroversial treaty, I do not think there would be any problem with it. I think it would be submitted to the House. I suggest that that is the procedure that should be followed.

I suggest that the proper course is to say what would we do if we were not talking about a controversial treaty and then follow the constitutional provisions which would be interpreted in calmer times, less contentious times, and regard those as controlling rather than take this and do what it seems to me to be a forcing of the construction in order to bypass the House of Representatives.

Mr. HUGHES. One more observation.

I was just fascinated with the history that was outlined by Professor Berger, and as new member of Congress, I never cease to be amazed at some of the outrageous statements that are made by the members of Congress, in both house debate and before this committee.

First, the specific provision relating to a particular subject normally will control over a general provision. This would have the property clause controlling over the treaty power. Similarly, there is another rule that suggests an express inclusion of a given matter, signifies an implied exclusion.

În Mr. Hansell's statement to the Senate Subcommittee on Separation of Powers, he argued that the property clause had no language excluding the treaty power. That statement stands this rule of construction on its head. The more likely view would be then since Congress has the power to dispose of public property, the President and Senate are impliedly barred from exercising that power.

The problem with the strictly textual argument based on these rules of construction is that it proves too much. Thomas Jefferson took this position. He believed the treaty power could not reach matters of legislation where participation by the House of Representatives was available. This very limited view of the treaty power leaves little for that clause to accomplish.

But with this, as with so many aspects of the Constitution, Jefferson was not an authoritative expositor. I think at least Geofroy v. Riggs witnessed the Court applying a treaty instead of a local rule of inheritance in the District of Columbia and limited though one can make that precedent, it does demonstrate that the treaty power can reach some legislative powers. But that would still leave the question: Which ones?

Part of Hansell's argument that the property clause does not limit the treaty powers stem from its placement in article IV. Professor Berger counters this by stating that placement of a power is without significance for its scope. Thus, Professor Berger notes that Congress has power to declare the punishment for treason and make exceptions and regulations respecting the Supreme Court's jurisdiction and that both of these are found in article III. The congressional power to determine the time for choosing Presidential electors is in article II. Yet, Professor Berger argues, the power granted to Congress means that it is not granted to the President. That much I think is accurate. But what one gets in Professor Berger's examples, if one looks, is that when you have the power to choose Presidential electors-that is in article II dealing with the President-the Supreme Court's jurisdiction is in article III-it is obvious that article IV deals with Federal-State relations and, indeed, one can make an argument upon context that article IV, with its clauses dealing with full faith and credit, interstate privileges, immunity, extradition of prisoners, creation of new states, guarantee of republican form of government, is designed exclusively to deal with aspects of issues going to whether a State or the Federal Government has power, not to which branch of the Federal Government might have power.

Indeed, when Madison discusses the property clause in Federalist No. 43, he put it in the paper dealing with miscellaneous congressional powers, and most of the article IV powers are in Federalist 43. He devotes a full paragraph to the property clause and that paragraph demonstrates what should have been obvious: that the primary purpose of the property clause was to clarify certain questions dealing