Panama Canal Treaty (disposition of United States Territory)

Among other things, Mr. Kissinger stated that he had agreed in the name of the United States to the following: "The United States and Panama agree that the Treaty of 1903 should be replaced by a modern treaty that rejects the concept of perpetuity."

In another paragraph of the same statement Mr. Kissinger said: "The United States has proposed that Panamanian law and jurisdiction would be applied in the Canal Zone."

This joint statement, which was made in 1974, is now stated by the Department of State and has been conceded in various motions which it has made before the courts to constitute the framework of the present negotiations that is, the disposition of the property of the Canal Zone and the turning over of the citizens down there to Panamanian law, placing the zone under Panamanian jurisdiction.

The original announcement by Secretary Vance and President Carter was that they hoped to complete this treaty by June of this year. Since that time the Department has revised its prediction and has reported that it was hoping to complete the new treaty by late

summer.

I understand from the first page of this morning's Post that a demand is now being made by Panama for a payment in addition to the Canal Zone that could possibly put it off even further.

Let us go at this time, if we may, directly to what the Constitution holds. As the chairman has noted for the record, the Constitution provides complete congressional power over the disposition and governance of territories by article IV, section 3, clause 2. I would like to read it again into the record, since it is of considerable importance in this regard.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.

This clause has come before the courts in many cases. The Supreme Court, in 1872 in the case of Gibson v. Chouteau held that the power given to Congress by the Constitution included the authority to prescribe the times, the conditions, and mode of any transfer, and the right to designate the persons to whom any transfer would be made.

This repeated a prior decision of the same court to the same effect in Irvine v. Marshall, reported in 20 Howard 558 in 1858. It was later followed by Emblen v. Lincoln Land Company, reported at 184 U.S.

660 in 1902.

Quite recently in 1970 in Sierra Club v. Hickel, there was a decision which was affirmed by the Supreme Court at 405 U.S. 727. The original decision was written by the ninth circuit in 1970.

In Sierra Club v. Hickel, the decision of the Ninth Circuit Court of Appeals, which was affirmed by the Supreme Court, stated:

Article IV, Section 3 of the United States Constitution commits the management and control of the lands of the United States to Congress. That Congressional power is unlimited.

This power of Congress under the Constitution to dispose of property which belongs to the United States is an exclusive power and has been so held by the courts. To the best of my knowledge, no court has ever said it is not. No court has ever said that any other branch of government has such power.

In Griffin v. United States in the Eighth Circuit Court of Appeals, reported at 168 2d 457, the court specifically pointed to the fact that the constitutional power thus given to Congress was in fact exclusive. to the legislative body.

The same holding was made by the Supreme Court in United States v. Fitzgerald, reported at 40 U.S. 785 in 1841; in Osborne v. United States reported at 145 F. 2d 892; and again the Supreme Court in 1954, in Alabama v. Texas reported at 347 U.S. 272. Each has affirmed the principle that the power over the territories which the Consitution lodges in Congress is an exclusive power.

Accordingly, any authority which the Executive may have to dispose of property of the United States must be first derived from authority given by an Act of Congress. This was stated again by the ninth circuit in 1959 in the case of Tugade v. Hoy which is reported at 265 F. 2d 63. It concerned the action of the United States in giving the Philippines their independence.

Does the State Department deny the congressional right to dispose of territories of the United States? The answer is no, it does not. Originally, in the earliest portions of the actions which were brought by various Senators and Congressmen against the State Department and others in this matter, the State Department did in fact take the position that the power of the Congress had to be modified to some extent by the State Department's arrangements with foreign nations.

As I understand from the proposed testimony of Mr. Meeker and others and the filings which have more recently been made in these cases, the State Department no longer contests the power of Congress to dispose of this territory.

However, it has brought up and put forward at this time a claim that under the Constitution's grant of treaty power to the President, the executive branch of government holds a concurrent authority to dispose of any United States property.

The treaty power, of course, is in article II, section 2 of the Constitution. It says nothing whatever about territory or property of the United States.

STATE DEPARTMENT CLAIMS CONCURRENT POWER

When a matter is a proper question of foreign affairs and when it concerns a domestic matter which is not a proper subject of foreign affairs is a matter which I leave to the State Department to explain to this body. As of the present time, however, it is the contention of the State Department that the President has truly concurrent power under the treaty power to dispose of property of the United States.

The point is one of considerable interest. My office has researched the point. I have done considerable work on it myself. As far as we can tell, there is not a single court and there is not a single commentator in the law who has ever supported the existence of this concurrent power which the State Department now claims.

Actually, what we did find was that there have been many rulings by the courts that such an authority does not exist and that the President's treaty power is limited whenever primary authority has been granted to another branch of Government by the Constitution.

If I may at this time, I would like to put into the record the following cases which I believe support that document. In the Supreme Court

Senator HATCH. Mr. Leonard, may I interrupt you for a moment? Because we have so many witnesses, I would suggest that we put your whole statement in the record, which lists these cases and the citations. It would allow the committee to give every witness as much time as possible, by saving time.

Is this acceptable to you?

Mr. LEONARD. It is quite acceptable to me.

Mr. Chairman, with your permission, I offer the statements as part of the record, and I will therefore pass over any citations of the cases. Senator ALLEN. Without objection, the statement will be inserted in the record.

Mr. LEONARD. I will merely state in this particular connection that the rule which I have just stated is one which has been supported strongly by the Supreme Court without, so far as I know, any exceptions of any kind.

Senator HATCH. I notice you have cited about seven or eight cases for that proposition.

Mr. LEONARD. It is rather a clear proposition. That is why I stated at the beginning that I simply do not believe that this new theory that the State Department has come up with has ever had any validity. I have pointed out that as late as 1955 there has never been the slightest question before the State Department that the disposition of any territory of the United States had to be made with the prior authorization of Congress.

To go outside of my prepared statement for a moment, it is my understanding that Franklin Delano Roosevelt tried to give 50 destroyers or thereabouts to the kingdom of Great Britain and was told by the Attorney General that this required congressional authorization before he could even give away the old destroyers.

Senator HATCH. I want to add that I am particularly pleased that you have put forth such a considerable effort here to provide us with cases and citations in this thorough and well-researched legal brief. We are very happy to have this additional information.

Mr. LEONARD. Senator, I would like to take the credit for that, but I cannot do it. This largely is a result of the research which has been done at the request of certain Senators who have gone forward in this matter and have tried to establish this principle in the courts. It was for them that I had done most of the work and most of the background research on this matter.

I take up a point now which is very interesting because we run into a question which I think the State Department has never really answered. If in fact—and let us assume arguendo at this moment-the State Department or the executive branch of Government has this concurrent power which they are talking about, may they exercise it when Congress has already acted, as in the enactment of the Canal Zone Code?

It is difficult to find authority on this point, because, as I say, no court ever seems to have held that there is such a power. The nearest analogy we have been able to find is the authority of Congress under the Commerce power to legislate in the field of foreign trade and the

authority of the President under the treaty power to negotiate in the field of foreign trade.

This appears to be a true concurrent power. As far as the courts are concerned it so exists.

I would like to point out, however, that the courts have unanimously, as far as I know, held that the President at no time may utilize his treaty power in opposition to an existing enactment by the Congress. I would like, if I may, to read some of the words of the district court here in the District of Columbia which go directly to this point: All parties recognize that if in fact Congress has preempted the relevant field of foreign trade and commerce, then the President lacks authority to act in a manner inconsistent with the requirements of the preemption legislation. The President clearly has no authority to give binding assurances that a particular course of conduct, even if encouraged by his representatives, does not violate the Sherman Act or other related congressional enactments any more than he can grant immunity under such laws.

Moreover, coming to the court of appeals and a decision which was rendered only about 6 or 7 months ago, which I think disposes of the major cases which have been referred to from time to time by the State Department as justifying that claim, the court of appeals here in the District said:

Support for judicial deference to executive actions in the area of foreign affairs is found in United States v. Curtiss-Wright Export Corp., and Chicago and Southern Air Lines v. Waterman Steamship Corp. Without depreciating the support given by dicta in these opinions to inherent presidential authority in foreign affairs, we note that the presidential authority was there exercised pursuant to statute, i.e., by the will of Congress. Justice Jackson, concurring in the Steel Seizure Case, pointed out: "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only on his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling Congress from acting upon the subject."

I point out that such legislation not only exists with respect to the Canal Zone, but when the Canal Zone Code and all of the other legislation relating to the Canal Zone were passed by this Congress, they received the concurrence of this Senate and they received the approval of the President of the United States-that is, the executive branch. Those laws exist today and govern the Canal Zone by virtue of the concurrence of the executive and legislative branches of this Gov

ernment.

If the treaty actually follows the framework of the 1974 statements and we understand that it does, and it has been stated that it does then the proposed treaty in effect constitutes a repeal of the entire Canal Zone Code. It constitutes a repeal of all the legislation which Congress has ever passed for the Canal Zone. It constitutes an Executive act overriding Congress in a field which the Constitution specifically not only gives the power to Congress, but in which Congress has already acted.

If in fact it could be shown that the President had concurrent power by treaty to dispose of properties or territories of the United States, and we assume this, as I said, as a matter of argument, then you come down to the fact that such power is absolutely curtailed by the courts whenever Congress has already acted in a field in which it has such concurrent power. In this field, it has acted.