Would your position on sufficiency of the treaty power be the same if the territory subject to disposal were acknowledged by all parties to be sovereign U.S. territory? Mr. HARMON. If we make the distinction between territory belonging to the United States and territory belonging to the States, no, we do not have the power and would not purport to break up the union. When you talk about sovereign power, whether the sovereignty over Panama Canal territory or sovereignty over other property outside the Union, outside the States, as recognized in the Union, no, I do not think that would change my opinion. The way we come down on the sovereignty issue-well, I think that answers your question. Mr. NONNENMACHER. Let me restate what I think is your answer. Even if you felt, even if the executive branch acknowledged the Panama Canal Zone were sovereign territory of the United States, you would still assert the right to dispose of it purely under the treaty power without action of both Houses of Congress? That is what I think you said. Mr. HARMON. Yes. Mr. NONNENMACHER. Thank you very much for your testimony. Mr. HARMON. I am not going to qualify that. I have given the qualification before. I am not talking about property belonging to the states. I am talking about property of the United States. We did not need to qualify it. We are in agreement. Mr. NONNENMACHER. Mr. Foy? Mr. Fox. I think the distinction has to be made between property belonging to the United States and property belonging to a particular State. Mr. HARMON. I think you were positing the situation though, call it sovereign or whatever, of property of the United States, United States Government, as distinguished from an individual State. I do not think there was confusion on that point. I did not misunderstand, I do not believe. Mr. NONNENMACHER. Thank you very much. The CHAIRMAN. Mr. Harmon, how long have you been Assistant Attorney General? Mr. HARMON. Since January 26 when the Attorney General was sworn in, I assumed office with him. As you will note, that was 6 days after the rest of the Cabinet was sworn in. The CHAIRMAN. Mr. Foy, how long have you been there? Mr. For. Since July, Mr. Chairman. The CHAIRMAN. Well, I want to compliment both of you on a very strong and forthright statement, far superior to the statements we have had from the Attorney General on this issue in the past, going back 7 or 8 years now. Mr. HARMON. Not this Attorney General. The CHAIRMAN. I used the term Attorney General very broadly. Mr. HARMON. We are getting blamed for a lot of things in the institutional sense. I wanted to cut off as much as I could there. The CHAIRMAN. I do not know whether Harlan Stone was faced with a decision as politically explosive at the time of his statement that counsel used in trying to get to the heart of the purpose of these hearings, which is to determine the rightful and proper role of the House of Representatives in the constitutional process. Mr. HARMON. Serious business, Mr. Chairman. The CHAIRMAN. Of course we are not dealing specifically with the Panama Canal, although it is here today. But we are looking down many future roads whereby the issue itself on a precedent basis once again will be raised. I do not think we would be fulfilling our proper responsibility to the Congress if we did not challenge at this point the rationale and feelings of some people in the executive branch. We will have witnesses tomorrow who are expert in constitutional law. Some of them will unequivocally come down in favor, on the side of the House, and its role of being a proper implementer in these areas. Others will not. Others will equivocate or feel that this is almost a political question that should be decided at this time. It is unfortunate that good faith cannot be shown on the part of the executive in reaching to the legislative where the area perhaps is gray in color. As Justice Jackson has stated, in past opinions involving this issue, we not have equivocated, and I think that the proper implementation and resolution of the Panamanian issue could be effected that way, whereas now I think we may come to the point where we draw very hard battle lines on a constitutional basis, on the House side, and not to the overall benefit of America's foreign policy. But notwithstanding the point, I would like to congratulate both of you on your presentation before this committee. Thank you. Mr. HARMON. Thank you. The CHAIRMAN. The committee will stand adjourned until 10 a.m., tomorrow. [Whereupon, at 4:50 p.m., the committee recessed, to reconvene at 10 a.m., Wednesday, January 18, 1978.] POWER OF CONGRESS TO DISPOSE OF U.S. PROPERTY WEDNESDAY, JANUARY 18, 1978 HOUSE OF REPRESENTATIVES, COMMITTEE ON MERCHANT MARINE AND FISHERIES, Washington, D.C. The committee met at 10:05 a.m., pursuant to recess, in room 1334, Longworth House Office Building, Hon. John M. Murphy (chairman) presiding. Present: Representatives Murphy, Hughes, Bonior, and Emery. Staff present: Carl L. Perian, chief of staff; Ernest J. Corrado, chief counsel; Bernard Tannenbaum, consultant; Nicholas Nonnenmacher, minority counsel; Terrence W. Modglin, professional staff; Merrill Whitman, consultant; W. Patrick Morris, chief minority counsel; Martin Howell, counsel; Ken Merin, special counsel; Ronald K. Losch, minority counsel; and W. Bernard Winfield, clerk. The CHAIRMAN. The committee will come to order. Our first witness this morning is Professor Raoul Berger. Professor Berger is one of the world's foremost constitutional authorities. He has testified before numerous congressional committees and is the author of many leading constitutional writings, including "Impeachment: Some Constitutional Problems"; "Executive Privilege: A Constitutional Myth"; and "Government by Judiciary: The Transformation of the 14th Amendment." The committee is especially honored to have the benefit of Professor Berger's acknowledged expertise and wisdom on the U.S. Constitution. STATEMENT OF PROF. RAOUL BERGER, FORMERLY WITH Professor BERGER. Thank you, Mr. Chairman. Let me emphasize at the outset that I appear on my own behalf. Nobody has retained me. I appear before you simply because the issue struck me as being of profound constitutional importance and I, therefore, began to study it, and I felt that perhaps I might contribute something to its analysis. I hope therefore that what I have to say is dispassionate. I have no axe to grind. Number two, my own predilection, I want to emphasize, not on the basis of profound study but the general reaction of the man in the street, has been in favor of the treaty. So I am not here to torpedo the treaty, not at all. If I had to make my choice between Ronald Reagan and Jimmy Carter, I have to confess to you I would choose Jimmy Carter here again. I am not here as an enemy of the ad (129) ministration, I emphasize. What I have to say to you is put to you in the spirit of scholarly inquiry. I am here because I share your solicitude for the preservation of constitutional boundaries and your concern lest the function committed to Congress be diminished. I have long held the conviction that all agents of the United States, be they Justices, Members of Congress, or the President, must respect those boundaries. No agent of the people may overlap the bounds of delegated power, or encroach on power granted to another. That is the essence of constitutional government and of our democratic system. The effect of these hearings ranges beyond the Panama Treaty, for the Panama cession will constitute a landmark which, should the State Department prevail, will be cited down the years for "concurrent jurisdiction" of the President in the disposition of United States property. For it needs constantly to be remembered that a succession of Presidents have circumvented Senate participation in treaties of gravest import by resort to executive agreements. So while the argument today is in favor of the President and Senate, it can, by a light turn of the screw, mean that the President alone may dispose of property. Acquiescence in such claims spells progressive attrition of congressional powers. Your insistence on respect for constitutional boundaries will warn the executive against encroachments on the powers of Congress; it will alert foreign nations to the fact that treaties for the cession of United States property must be subject to the consent of the House as well as the Senate. The President, "by and with the advice and consent of the Senate" may make treaties. But article IV, section 3(2) provides that "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." I was astonished yesterday to hear Mr. Hansell state, and I quote I copied the words down verbatim-"there is no real doubt on this issue." But testifying before your committee in the year 1971, Deputy Assistant Attorney General Erickson said, and I quote, "the answer to this question is not simple and altogether free from doubt." The Government was talking out of both sides of its mouth on different occasions. If there are doubts, as Assistant Attorney General Erickson testified, plain language of the Constitution is not to be curtailed in a doubtful case. Where there is any doubt about it, all doubt should be resolved against a curtailment. For present purposes, the question whether the United States has sovereignty over the Canal is of no moment. It suffices that the United States has property in the Canal Zone. The right of occupation and use in perpetuity constitutes property. Then there are the installations that cost billions of dollars. Disposition of these no less requires the consent of Congress than does that of territory. In earlier testimony, Mr. Hansell conceded that there was a mixed practice with respect to Panama. Your chief counsel has gone through in detail over some of the Panama treaties. I will not spend much time on them but just note two. In 1942, the President, by executive agreement, promised to return certain installations to Panama subject, however, to congressional approval. Mr. Hansell gave us to understand there are other occasions where they dispensed with such approval. So on Mondays, Wednesdays and Fridays the administration complied with the constitutional requirement, and Tuesdays, Thursdays and Saturdays it did not. Now, the scope of a provision in the Constitution does not depend on the caprice of the administrator The CHAIRMAN. What do they do on Sunday? Professor BERGER. Thank God, they take a day off. So, I put all of this appeal to a mixed practice aside. Second: if I may direct myself to a few other points here addressing myself to Mr. Hansell. He suggested that the Congress acquiesced. Let us assume that it did. By the way, he very handsomely granted that he was not claiming that there was a waiver of authority. I would like to nail that down. Even if the Congress wanted to, it could not. The Supreme Court has held Congress cannot abdicate its authority. So there cannot be any talk of waiver, of acquiescence. I beg to remind you that for a long period there was acquiescence, and be it said to the shame of Congress, in the President's singlehanded execution of the war powers, and it took Vietnam to shock you out of that. Did Congress lose its control over the declaration of war because it stood by and watched it being exercised by the President? Why, of course not. It could not abdicate its powers, and by the War Powers Resolution, reasserted them. I remind you of a great case that came down during my law school days. The Supreme Court had adhered to a doctrine known as Swift against Tyson, and over the years there was mounting criticism. Then, after 100 years, Justice Brandeis held that the Supreme Court had been acting unconstitutionally, and he quoted Justice Holmes who said it is never too late to brand a usurpation unconstitutional. Similarly, even if you sat by and condoned this mixed practice, it does not amount to a hill of beans. We look to the Constitution itself for what is a legitimate practice. Now, let us turn to the Constitution. Over here you have a treaty power which, standing alone, might be as broad as the all outdoors. But it does not stand alone. Because over there you have got a power of Congress to dispose of property. Remember that the House had been excluded from the power to negotiate treaties, on two grounds. One: Secrecy was incompatible with the great numbers of the House. You remember the old adage: "Three can keep a secret if two are dead." You can multiply that if you have 100 Congressmen. Two: The little States, which were afraid of being outweighed and outnumbered by the big States if voting would be solely on the basis of population, as it was in the House of Representatives, fought for the Senate as the joint treatymaker because they would be on an equal basis; two Senators from every State. Those were the reasons the House was excluded. Those who were deeply attached to a representative instead of this Senate elite, time and again renewed the battle to have the House |