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4.M 53:45 -94

POWER OF CONGRESS TO DISPOSE OF U.S. PROPERTY

95-2

HEARINGS

BEFORE THE

COMMITTEE ON
MERCHANT MARINE AND FISHERIES
HOUSE OF REPRESENTATIVES

NINETY-FIFTH CONGRESS

SECOND SESSION

ON

THE RELATIONSHIP BETWEEN THE TREATY POWER AND THE
POWER OF CONGRESS TO DISPOSE OF U.S. TERRITORY AND
PROPERTY UNDER ARTICLE IV, SECTION 3, CLAUSE 2 OF THE
CONSTITUTION; AND THE RELATIONSHIP BETWEEN THE
TREATY POWER AND THE POWER OF CONGRESS TO MAKE
APPROPRIATIONS UNDER ARTICLE I, SECTION 9, OF THE

CONSTITUTION

JANUARY 17, 18, 1978

T Serial No. 95–32

SUNIVERSITY
Printed for the use of the Committee on Merchant Man

FEB 1979

PORT DOCUME

DEPARTMENT

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 1978

29-613

Hear

COMMITTEE ON MERCHANT MARINE AND FISHERIES

Stat

JOHN M. MURPHY, New York, Chairman
THOMAS L. ASHLEY, Ohio

PHILIP E. RUPPE, Michigan
JOHN D. DINGELL, Michigan

PAUL N. MCCLOSKEY, JR., California
PAUL G. ROGERS, Florida

GENE SNYDER, Kentucky
WALTER B. JONES, North Carolina

EDWIN B. FORSYTHE, New Jersey
ROBERT L. LEGGETT, California

DAVID C. TREEN, Louisiana
MARIO BIAGGI, New York

JOEL PRITCHARD, Washington
GLENN M. ANDERSON, California

DON YOUNG, Alaska
E (KIKA) DE LA GARZA, Texas

ROBERT E. BAUMAN, Maryland
RALPH H. METCALFE, Illinois

NORMAN F. LENT, New York
JOHN B. BREAUX, Louisiana

DAVID F. EMERY, Maine
FRED B. ROONEY, Pennsylvania

ROBERT K. DORNAN, California
BO GINN, Georgia

THOMAS B. EVANS, JR., Delaware
GERRY E. STUDDS, Massachusetts

PAUL S. TRIBLE, JR., Virginia
DAVID R, BOWEN, Mississippi
JOSHUA EILBERG, Pennsylvania
RON DE LUGO, Virgin Islands
CARROLL HUBBARD, JR., Kentucky
DON BONKER, Washington
LES AUCOIN, Oregon
NORMAN E. D'AMOURS, New Hampshire
JERRY M. PATTERSON, California
LEO C. ZEFERETTI, New York
JAMES L. OBERSTAR, Minnesota
WILLIAM J. HUGHES, New Jersey
BARBARA A. MIKULSKI, Maryland
DAVID E. BONIOR, Michigan
DANIEL K, AKAKA, Hawaii

CARL L. PERIAN, Chief of Staff
ERNEST J. CORRADO, Chief Counsel

FRANCES STILL, Chief Olerk
W. PATRICK MORRIS, Chief Minority Counsel

Adi

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CONTENTS

213

Hearings held-

January 17, 1978.--

January 18, 1978..

Statement of -

Allen, Hon. James B., a U.S. Senator from the State of Alabama ---

Berger, Prof. Raoul, formerly with Harvard University

Prepared statement

Foy, H. Miles, III, attorney adviser, Office of Legal Counsel, Depart-

ment of Justice-

Hansell, Herbert J., legal adviser, Department of State.-

Hansen, Hon. George, a Representative in Congress from the State of

Idaho.--

Harmon, John M., Assistant Attorney General, Office of Legal

Counsel, Department of Justice..

Kamenar, Paul D., Washington, D.C.

Leonard, George Stephen, attorney, Washington, D.C.

Popeo, Daniel J., General Counsel, Washington Legal Foundation --

Powe, Prof. Scot, Georgetown University Law Center.

Prepared statement-

Rice, Prof. Charles E., University of Notre Dame Law School -
Young, Hon. C. W., á Representative in Congress from the State of

Florida..
Additional material supplied-

Allen, Sen. James B.:

Other witnesses -

Witnesses asserting concurrent congressional power.

Witnesses in favor of exclusive congressional power.

Berger, Prof. Raoul: Appendix to statement..

Hanselí, Herbert J.:

National Assembly of Panama.

Property of dispute---

Supplemental statement-

Transfers of property -

Hansen, Hon. George:

Article from Congressional Record of January 4, 1978: “Carter's

Canal Treaties—A Bail Out for the Big Banks”

H. Con. Res. 348..

Panama-A Blitz on the Taxpayer-

Possible Effects of Increased Canal Toll Fees and Restricted

Access to the Panama Canal on U.S. Agricultural Trade, by

Janice E. Baker..

The Panama Canal and U.S. Farm Trade

The Treaty That Wall Street Wrote -

Who's Who for the Canal Treaty--

Harmon, John M.:

Attorney General Harlan Stone Opinion..

Popeo, Daniel J.:

Appendix A-Memorandum of August 30, 1977, from Mike

Blumenfeld,

Tannenbaum, Bernard:

Effects of absence of Congressional approval for implementation of

Articles VI and VII of the 1955 Treaty, by W. M. Whitman..

Excerpt from memorandum to the Committee from the Library of

Congress-

Communication submitted-
Harmon, John M.: Letter of January 31, 1978, to Hon. John M.
Murphy

3

43

36

33
32

68

118

513ST

XL2
12/97

53-M5-M GRC

2563

Pago 215 215

218 222

Appendix A.

Exhibit No.'1—Whitman, "Property of the U.S. in the Canal Zone"..
Exhibit No. 2—Tannenbaum, “Disposition of U.S. Property in the

Panama Canal Zone".
Exhibit No. 3—CRS Memo to JMM dated July 19, 1977.
Exhibit No. 4—Merin Paper regarding Treaty Power dated August

4, 1977
Exhibit No. 5—CRS memo to JMM dated September 29, 1977-
Exhibit No. 6-CRS memo (Killian) dated December 30, 1971..
Exhibit No. 7—Whitman Paper dated November 1977--
Exhibit No. 8-Statement of Governor Parfitt for the record, Jan.

18, 1978..

Exhibit No. 9-Letters of Comptroller General to JMM.
Appendix B-Material relating to the case of State of Idaho et al., Plaintiffs
v. Cyrus R. Vance, et al.--

Exhibit 1.-Complaint-
Exhibit 2.- Brief for the defendants in opposition..

236 244 258 262

274 280

282 283 313

POWER OF CONGRESS TO DISPOSE OF U.S. PROPERTY

TUESDAY, JANUARY 17, 1978

HOUSE OF REPRESENTATIVES,
COMMITTEE ON MERCHANT MARINE AND FISHERIES,

Washington, D.C. The committee met at 10:02 a.m., in room 1334, Longworth House Office Building, Hon. John M. Murphy. (chairman) presiding.

Present: Representatives Murphy, Bonior, and McCloskey.

Staff present: Carl L. Perian, chief of staff; Ernest J. Corrado, chief counsel; Bernard Tannenbaum, consultant; W. Merrill Whitman, consultant; Nicholas Nonnenmacher, minority counsel; Terrence W. Modglin, profession staff; Martin Howell, counsel; Bernard Winfield, clerk; W. Patrick Morries, chief minority counsel; and Ron Losch, minority counsel.

The CHAIRMAN. The committee will come to order.

Last August 17, 1 week after an agreement in principle was concluded between United States and Panamanian negotiators in Panama City, the Committee on Merchant Marine and Fisheries held a hearing on the role of the House of Representatives in connection with the basic Panama Canal agreement. Because our August 17 hearing was too brief to cover all issues adequately, especially the constitutional question of property disposal, the committee resolved to have further hearings once the Panama Canal Treaties were published. Today and tomorrow, we will continue the examination of the House role pursuant to that decision.

Since August, there have emerged at least two constitutional issues involving the role of the House of Representatives in the Panama Canal Treaties. We will examine these two issues, involving the transfer of U.S. property and territory and the power of Congress to appropriate moneys, in the light of the proposed canal treaty relationship.

In order to have the right kind of in-depth examination that these topics deserve, we will take testimony from Members of Congress, representatives of the administration, and several attorneys and constitutional law experts.

The United States has a strong and undeniable property interest in the Canal Zone, a fact affirmed by the paper presented to us by the Governor of the Canal Zone in connection with these hearings. The fact of U.S. property ownership was also acknowledged by Ambassador Bunker in our August learings.

Given the agreement on the presence of U.S. property rights, the manner of disposition of the Canal Zone and canal-related property will be a major constitutional precedent determining the procedures

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