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.

I will refer only to the citation rather than give it here-to a treaty provision with the Republic of Panama. I believe this is the 1936 language of the proposed treaty, which the State Department is bringing forward as being an example of their right to dispose of property to Panama.

This is the language of the treaty:

When the authority of the Congress of the United States shall have been obtained therefor, the Government of the United States will transfer to the Republic of Panama * * *

In 1955-by the way, I may say that Congress did authorize that transfer passing an act on May 3, 1943. The citation is in the state

ment.

Again, one of these peripheral matters came up in 1955. In the words of the treaty as passed at that time:

The United States of America agrees that, subject to the enactment of legislation by the Congress, there shall be conveyed to the Republic of Panama

I point out that in every case we know of, and in every case we have been able to find, the State Department has in fact requested the authorization of Congress to whatever proposal it had. I do not mean treaty approval on a moral commitment basis by the Senate.

With regard to that 1955 treaty part of whose words I have just read, Congress did in fact pass legislation which authorized that disposition of property. That is an act which was placed into effect on August 3, 1957.

In 1973 there were World War II airfields outside the Canal Zone proper, I believe, in Panama which had been taken over for the defense of the Canal. The idea was to return these to Panama.

Originally, as I understand it, treaties were proposed with Panama for this purpose. In 1973 President Nixon made a public announcement that he would propose returning them by way of a bill passed through Congress. This is reported in 70 Department of State Bulletin 456. Actually, President Nixon never presented that to the Congressneither the bill nor the treaties. It was never done. The reason for it I do not know.

I point out possibly an unpleasant matter, and that is that Congress itself is limited in this regard. The Constitution provides, of course, that Congress may dispose of territories.

There are times when Congress would just as soon avoid, in small matters the necessity for going through the entire legislative process. On two occasions which we have been able to find, the Congress has attempted to dispose of property by joint resolution. In both cases it has been held that they could not do so.

If I may, I should like to read to you at the present time from the hearings before the Committee on Foreign Affairs of the House of Representatives, the citation for which is in the statement in the record.

This is rather remarkable. The person who made the statement involved is Mr. Green Hackworth, certainly one of the greatest and most noted legal advisors which the State Department has had. He is the author of many texts on international law. I believe he is regarded as one of the greatest authorities in this field that the State Department has had the good fortune to employ.

He said:

The fact that our property rights in Panama acquired by the treaty process does not in the slightest degree derogate from the authority of Congress to dispose of them. Its authority is the same whether the property was acquired by treaty, gift, purchase, or otherwise.

There are innumerable instances in which property acquired by the United States by treaty or convention, or other international agreement, has been disposed of by the Congress, or the Congress has authorized the Executive to dispose of it. I have in mind the disposition of public lands acquired by the United States by treaties, such as those acquired from France in 1803, commonly referred to as the Louisiana Purchase, the territory acquired from Spain under the treaty of 1819, the Floridas and the territory acquired from Mexico under the Treaty of Guadalupe Hidalgo in 1848 and the Gadsden Treaty of 1853.

Now, in addition to Mr. Hackworth I point to the fact that the then Attorney General, whom he consulted in this matter, was later Mr. Justice Harlan F. Stone, certainly one of the most revered of our Supreme Court Justices.

Mr. Justice stated:

The Constitution (art. 4, section 3, clause 2) gives to Congress the power "to dispose of *** property belonging to the United States," and Mr. Justice Thompson sitting in Circuit, in U.S. v. Nicoll-an early case concerned with the disposition of personal property said: "No public property, therefore, be disposed of without the authority of law, either by an express act of Congress for that purpose, or by giving the authority to some department of the Government or subordinate agent."

If follows, then, that property once acquired by the Government may not be sold, or title otherwise disposed of except under the authority of Congress, and in the manner provided by law, and this prohibition extends to any attempt to alienate a part of the property or in general in any manner to limit or restrict the full and exclusive ownership of the United States therein.

The matter came before the Supreme Court in 1947. It came to precisely the same conclusion, and I have cited the case in the statement-that is United States v. California.

Have these principles about which I have been speaking been taken before the courts and ruled on? The answer is yes. They have been taken before the courts, and no; they have not been ruled on.

Two actions have been brought to challenge the claimed authority of the Executive to dispose of the Canal Zone by treaty without first seeking prior authorizing legislation from the Congress. The plaintiffs in both cases were William R. Drummond, a citizen and resident of the Canal Zone, employed by the United States there, and I believe a union official of Canal Zone Federal employees. His position is essentially the same as some 35,000 citizens living and employed in that area. The other plaintiffs were Senators Jesse A. Helms, James A. McClure, and Strom Thurmond and Representatives Daniel J. Flood, Lawrence P. McDonald, and M. Gene Snyder.

I would like to point out that in both cases there would have been many more plaintiffs from both the Senate and the House of Representatives in these cases had it not been simply impractical procedurally to have more than was necessary to make the point.

Senator SCOTT. Mr. Chairman, if I might impose, as I notice the schedule we have another witness at 8:30 and it is now 9:00. I wonder if we could-retaining the courtesy to our present witness-request that he might summarize so that we do not get too far behind in our schedule.

Senator ALLEN. I think it would probably be well, Mr. Leonard, if we put your statement in the record and then allow us to ask a couple of questions. Your statement will be in the record in full.

Mr. LEONARD. Since my statement is in the record I will forego further reading from it and offer myself to answer any questions the Senators may have.

Senator ALLEN. Mr. Leonard, it would be preferable, I assume, for the Congress to authorize the executive department to enter into these negotiations. However, do you feel that the negotiations which have taken place are illegal, or do you feel that if an agreement is reached subject to the approval of Congress that that would satisfy the deficiency of prior authorization?

Mr. LEONARD. I assume that when you say "the approval of Congress," you mean a subsequent ratification?

Senator ALLEN. Yes.

Mr. LEONARD. The answer, Mr. Chairman, in my opinion, is that it is totally illegal and no subsequent ratification could approve it. The reason I say that is that we have to go back to the phrase "foreign affairs." Is the disposition of property of the United States a proper subject of foreign affairs?

If it is, it is a proper subject of treaty negotiation. It would be improper for a treaty to be proposed subject to subsequent congressional ratification. There are, however, sufficient examples of this having happened in smaller matters. I am sure it is an established procedure.

The question is, very interestingly here, whether disposing of property of the United States is a proper subject of the treaty power. I say it is not.

Senator ALLEN. If the treaty is entered into and it has a stipulation, as the 1942 and 1955 treaty had that on approval of Congress this disposition would take place, would that satisfy the requirement? Mr. LEONARD. As of the time of the approval of Congress, I think so without question.

Senator ALLEN. Anything prior to the approval, though, would be unauthorized?

Mr. LEONARD. Prior to the approval it would not, in my opinion, be a treaty, whatever it was called.

Senator ALLEN. Action by Congress would give life to an unauthorized procedure, is that correct?

Mr. LEONARD. That is quite true. It has many times in the past. As I say, there are a number of instances in which a small matter of a few acres here and here-for example, certain Indian lands and others the Executive has simply acted and later gone to Congress for authorization-retrocative authorization, and has received it.

You will notice that in both the 1936 and 1955 proposals, they were made subject to congressional enactment. Congress did in fact approve them.

Senator ALLEN. Supposing that a proposed treaty is entered into. That would take approval by a two-thirds vote of the Senate. In addition to that it would take a statute enacted by the Congress and approved by the President to result in the transfer of property. Is that correct?

Mr. LEONARD. No: I believe not, Mr. Chairman.

Senator ALLEN. What is your judgment of what is correct?

Mr. LEONARD. The treaty proposal to the Senate, if this is not a proper subject for treaty, is in fact void and the action of the Senate on it would be equally void.

I hope I make myself clear here, because when this question-and presumably sooner or later the question will come before the courts--the question is whether it is, in fact, a treaty. If it is not a treaty, regardless of what it may be called, it is void.

Senator ALLEN. In other words, you feel that the treaty could not. purport to transfer property even though that purported transfer was dependent upon action by the Congress. Is that correct?

Mr. LEONARD. If the property were small enough that it made no practical difference, I do not believe the courts would interest themselves in it.

In this particular case we are talking about an entirely different type of matter. In this particular case I believe that no such power exists; that the courts would support the concept that no such circumstance exists that takes it out of the treaty power. Therefore, a piece of paper called a treaty, whether or not approved by two-thirds of the Senate is just as void as if it were done by myself.

Senator ALLEN. What if it were approved by both Houses of Congress by statute?

Mr. LEONARD. I think that at that point it would be read as being retroactive legislation. I think that as a practical matter the courts would rule it valid simply on the ground that Congress does possess the power to enact a bill having these provisions, and that in effect is what it has done.

Senator ALLEN. In other words, it would be a belated action taking place at the wrong time.

Mr. LEONARD. There have been some occasions on which the courts refused to say that Congress was belated.

Senator ALLEN. Let's look at the other side of the coin.

Suppose the Congress initiated the transfer and passed a statute providing for the transfer of this property. That would take a majority vote in both Houses, I assume.

Mr. LEONARD. That is correct.

Senator ALLEN. That having been done, what phases would be covered by a collateral treaty?

Mr. LEONARD. Well, I presume that Congress would designate some agent, as it did in the Spooner Act-preferably the Executive-who can act by an agreement which he calls a treaty or convention, because it makes no difference what it is called, really. Congress can authorize someone, whether it is the Executive or someone else, to conclude an agreement with the Republic of Panama the provisions of which are thus.

Senator ALLEN. In other words, spell out the disposition of property in the treaty provisions and then submit it back to Congress or to the Senate; is that correct?

Mr. LEONARD. Where you cross the line of improper delegation of legislative powers to the Executive has been a question which lawyers have discussed for many years without coming to a clear result.