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skeptical that the unique circumstances of the Indians in the developing West provides useful conclusions on the power to dispose of the Panama Canal.

The precedents that seem most directly applicable to Panama are those dealing with the Canal itself the return of the Ryukyu Islands to Japan, boundary disputes and Lead-Lease. The latter two may be easily dismissed. Boundaries must be settled and the very fact of dispute puts one on notice that this is not the normal abandonment. As Crandall states "a treaty for the determination of a dispute line operates not as a treaty of cession, but of recognition." S. Crandall, Treaties. Their Making and Enforcement, 26 (2nd ed. 1916). Lend Lease bad as authority an opinion by Attorney General Jackson concluding as Attorneys General are wont to do, that the necessary authority existed. His opinion found both the necessary statutory power and the constitutional power to act as commander-in-chief as well. One should be reasonably chary, however, in placing too much reliance on a single precedent with thin support occurring on the verge of the World's most terrible war. Indeed Jackson, the Associate Justice, hinted strongly that his opinion as Attorney General should not be taken too seriously. Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579, 647 (1951).

The return of the Ryukyu's to Japan is also clouded. There can be some argument that they were not United States territory within the meaning of Article IV and so their return raises no constitutional issues. Additionally a weaker case can be made that there was statutory authority for the transfer under either the Foreign Assistance Act of 1961 or the Federal Surplus Property Act of 1949 although I would doubt that anyone would be comfortable with too much reliance on that argument. With those arguments on the table one must confront the fact that we returned islands, taken by us in World War II and controlled by us thereafter, and we did so without participation by the House of Representatives.

Looking the other way is past practice with respect to property in the Canal Zone. Here the practice has been most clear and it has consistently been that full participation by the House of Representatives has been necessary when property was transferred. On its face prior dealings with respect to the Canal Zone would seem to be the most relevant precedents for future dealings with the Canal Zone. Nevertheless, to rely fully on these would be to confuse one politically (and constitutionally) permissible way of disposing of United States territory with the issue of whether there is constitutional power to do it another way.

It seems clear that the United States has disposed of property by treaty and without approval of the House of Representatives in the past. It may have been aberational; it may have been illegal. But it was done and no court has pronounced it illegal.

Indeed what make the issue being explored today so difficult is the conclusion that if the appropriate test case could be framed and litigated the odds are favorable that the Court would sustain whatever was done. The necessary materials provide no bright lines and a Court faced with the task of unscrambling eggs would probably eat them instead. It is just a whole lot easier to do and the old discussion about “political questions" may have few modern cases for application as compelling as this one. I am not necessarily suggesting a traditional application of the "political questions" doctrine. What I am suggesting is that the creation of anything but a laughable remedy (especially if the Panamanian Government receives control of the Canal) might lead the Court on the merits to sustaining what occurred. Thus if the Court were faced with a ratified treaty giving the canal away, it would probably be impossible to prevent the occurrence and considerably easier, as I will show momentarily, to sustain it. Similarly if the Court were faced with whatever might be an appropriate legislative effort to block cesession of the canal by treaty, that too could be sustained although coming up with the appropriate methodology as well as the theory are somewhat more difficult.

Writing an argument to sustain cessession of the Panama Canal by treaty would be amazingly direct. Indeed I think it can be done by noting three basic points. First, no where in the Constitution does there appear to be a restraint on the alienation of territory through the treaty power. Second, the overwhelming evidence is that the Framers of the Constitution recognized this issue and did nothing to prevent alienation of property by treaty alone,

Third, the limited judicial precedents in this area not only present no bar to the action, they are consistent in sustaining all exercises of the Treaty Power. Naturally there are nuances to those arguments and other points that a scholar would feel compelled to consider, but that does not detract from the position that sustaining the Executive's position could be forthrightly accomplished. Sustaining_participation by the House of Representatives would be more difficult, but I think it too can be done. This argument, however, must take account of nuances and it must, I think, acknowledge that under some circumstances a property transfer might be constitutionally valid even without participation by the House. Let me spell this out in some detail.

Property transfers between nations have often been connected with wars. I have read no discussion of the Treaty Power which has not assumed that in the event of a disastrous war the United States might be forced to cede territory, indeed maybe even cede all or part of a State. Earlier discussions would naturally think in terms of the exposed or perimeter States and in 1787 no state was in a more vulnerable position than Georgia. If we had fought a war with Spain in the 1790s and lost badly the price of defeat would have been at least navigation of the Mississippi River and might well have included Georgia.

Could that have been done without participation by the House? The answer based on what the Framers would say is yes. Indeed even Thomas Jefferson who would have given as limited a scope to the Treaty Power as anyone would have answered yes. Knowing that need we defer to the Framers today when considering Panama? The answer seems clearly "not necessarily." With the exception of Professor Berger I know of no other individual with any reputation in constitutional law who believes that ascertaining the Framers' intent sets the correct interpretation of the Constitution for all time. Everyone else holds that the Framers would be shocked to find that eighteenth century solutions were the only ones available to twentieth century problems.

The constitution has changed over times, adopting itself, or being adopted, to the circumstances of an ever-changing Republic. If the modern Constitution requires House participation in the cesessions of territory by the United States then the Framers are not likely to prevent it.

If the beginning point for the hard case of cessession of territory at the end of a disastrous war is used one has a helpful opening wedge to understand the problem. First, the situation is utterly distinguishable. Whatever complications may grow out of our retaining the Panama Canal we are not yet speaking in terms of war. We are not defeated suitors trying to purchase a peace under the gravest necessity of accomplishing it on any terms and immediately. Second, if one goes back to the Framers' understanding for a minute it is possible to argue that the House understands that a war may involve the loss of territory by treaty and that this is one of the things it takes out of its own hands when it votes for a declaration of war. It may not wish to lose control of this, but often one can not have two contradictory positions and expect to hold to each under all circumstances. Essentially my argument on this point is that House participation in the cessession of United States property, even in an extreme case, is necessary at some point in time even though the point need not be actual disposition. For purposes of a disposition after a war, participation in the decision to fight is sufficient.

It is obvious where the above argument leads in the modern world. In my constitutional law classes I have annually focused on the problem of the war in Vietnam and Cambodia. Although my position could change, I tentatively have been holding to the view that the Constitution was satisfied with respect to our fighting in Vietnam, but not with the widening of the war to include Cambodia. I understand how others could take different positions on both those issues. Nevertheless, I wonder if formal declaration of war will be with us in the future. If they are not, then it seems to me that regardless of whether the Constitution is satisfied, the quality of the House of Representatives decision favoring participation will not be as high as it once was. And participation somewhere is necessary before United States territory is ceded. Thus in the absence of the necessary consideration at the inception, one could find it mandatory at the end when the treaty is considered.

The above analysis also comports well with the modern rediscovery of the desirability of full participation of all branches of government in essential

decisions. No one who reads the various debates of the latter part of the eighteenth century can fail to note the profound suspicions of power that age had. Our government was not intended to operate with complete smoothness because that could too easily lead to tyranny. One sees many similar arguments today in the wake of Watergate and the war in Indochina. Government, which since the New Deal had looked benevolent, no longer seems so wise, just and good. Presidents, no matter what the margin of their victory or what percentage of Ivy Leaguers in key advisory positions, were not always correct on the little issues, much less the larger ones. It was possible to wonder if options were more fully debated in more arenas whether the outcomes would have been the same. In this process of wondering the rediscovery of what our forefathers knew so well occurred. A country is better governed when the short cuts are not taken and when the representatives of the people are called upon to deliberate and choose. This rediscovery of our forefathers represents the modern constitution. It is a Constitution that looks to maximum participation by all branches of government in the essential decisions of a democracy. It recognizes that this means inefficiency. It recognizes that this may well mean that good policies will not be implemented. But it believes that this is the best way of making informed policy judgments and is essential in preventing the accumulation of too much power in any one branch of the government. Applied to a decision like turning over the Panama Canal it would require participation by the House of Representatives because they are closer to the people and on an issue like this more likely to reflect what the country wantseven if that may not be what is good for it. If the Panama Canal were a less vital issue it would not matter, but somehow everyone seems to think it very important. And is not this the type of an issue that deserves the fullest exploration?

One hates to go back and put modern questions into the Framers minds. For after all, if they were alive today they would be very old and quite senile. Nevertheless, I doubt if they would find what I have outlined as foreign. The first treaty concluded under the Constitution was Jay's Treaty in 1795. The treaty looked to the appropriation of funds for its implementation. In preparing a draft for President Washington's submission to Congress following ratification, Hamilton wrote: "the House of Representatives have no moral power to refuse the execution of a treaty which is not contrary to the Constitution, because it pledges public faith; and have no legal power to refuse its execution because it is a law." The House of Representatives with James Madison in the lead rejected this position. And in the debates over Jay's Treaty it was established-to the extent that debates can establish anything-that appropriations must be independently determined by Congress regardless of what a treaty says. One could make a linguistic interpretation of the appropriations clause in Article I section 9 and compare it with other parts of the constitution to determine under what circumstances something must be done by legislation and when it may be done by treaty. But for me at least a better explanation seems to lie in the fact that appropriations of money are absolutely essential in the functioning of a government and one does not like to see the appropriations process short circuited. Thus the fact that in Geofroy v. Riggs a local rule of inheritance was overridden by a treaty is of small consequence. Besides the parties to the case few if any would care. Appropriations are different and not unrelated to a prominent slogan of an earlier era: "No taxation without representation." From the comparison of Jay's Treaty and Geofroy v. Riggs I think it might be concluded that the determination of what can be done by treaty and what must be done by Congressional action can best be made by a determination of how essential the matter in question is. Because the more important it is, the more one should be looking to the fullest possible participation by all the branches of government.

What I have just given is a quite long exposition of how one might conclude that the Panama Canal can not constitutionally pass by treaty. Yet I must return to where I began. The conclusion is not free from doubt and I am afraid that I am unable to provide a definitive yes-no answer for you. Like all the great constitutional questions there are very good arguments on both sides. As Justice Jackson noted in the Steel Seizure Case power among the branches of government ebbs and flows and there are middle grey areas. To say, as I suggested earlier, that the Supreme Court would probably sustain whatever is 29-613-78-13

done, is not the same as answering the difficult question. It may well recognize nothing more than the problem is really beyond judicial competence and thus one of the genuinely few "political questions." The Court is not a body that can answer the problems before you. I think it clear that the Constitution does not preclude the House from bringing its case to the Senate, but I am sorry that I can not tell you what the Senate must do in return.

The CHAIRMAN. Mr. Tannenbaum.

Mr. TANNENBAUM. Mr. Powe, would it be fair to say that a brief summary of your statement would be that there are no real cases supporting the concurrent theory argued by the administration? Professor Powe. Let me answer it a little more fully than a yes-no. There are no cases on the question that you are looking at. To that extent, I think it is true except possibly Geofroy v. Riggs. I find some ambiguity there.

It seems to me that if we are talking about concurrent powers in general, I think it is plain that the treaty power can reach something, the Congress has the power to regulate. So if you are asking me to reach for a broad question, I think the answer is no.

Mr. TANNENBAUM. No, there are no real cases?
Professor Powe. Well-excuse me-

Mr. TANNENBAUM. Or, yes, there are no real cases?

Professor PowE. There are no cases on the question that you are talking.

Mr. TANNENBAUM. Sustaining the concurrent power?

Professor Powe. With the exception of Geofroy_v. Riggs.

Mr. TANNENBAUM. Well, the administration, I believe, stated yesterday, when I tried to narrow down the cases, and, in fact, we went through each case and they felt that Holden v. Joy did stand for the proposition and in fact cited the Sioux Tribe case as standing for the proposition, the concurrent powers, and I think you have treated that fairly clearly.

Professor PowE. It seems to me that the Sioux case is entirely against them and if they believe Holden v. Joy settled the question, then they probably believe in the tooth fairy as well.

Mr. TANNENBAUM. In fact, the State Department counsel took the position that the one-liner in Holden v. Joy was not dictim. Do you care to comment on that?

Professor PowE. He should be embarrassed, but I suspect he is not. Mr. TANNENBAUM. All right.

Then you go to the next point and you say the framers' intention really does not matter in terms of the modern world.

Is that a fair summary?

Professor PowE. Well, it is useful, but I would never let the dead hands of the past control what was a wise action today if it seemed to me that there were options.

Mr. TANNENBAUM. And then-the next point you make, I believe, is that the historical precedents are of no real import, whether there was acquiescence or not.

Professor PowE. I think that is fair.

Mr. TANNENBAUM. And yet you, your final conclusion is that even though I do believe you are in favor of the Panama Canal TreatyProfessor PowE. To the best of my knowledge, I am in favor of it,

yes.

Mr. TANNENBAUM. And yet your conclusion is that the House should not be excluded in this mundane world.

Professor PowE. If I had a choice, that would be my conclusion,

yes.

Mr. TANNENBAUM. Thank you very much.

I appreciate your statement and I think it is very well written. The CHAIRMAN. Who was the one reputable constitutional expert that you refer to?

Professor PowE. Professor Berger.

The CHAIRMAN. OK.

Well, Dr. Powe, we certainly appreciate your contribution.

I wonder if Mr. Nonnenmacher has any questions?

Mr. NONNENMACHER. I do not have any.

Mr. TANNENBAUM. Professor Powe, I do not believe you responded to the question of the appropriations issue.

Do you care to make any comment on that?

Professor PowE. Yes. I think that one is fairly easy.

Indeed, to the best of my knowledge, there really is not an argument to the contrary that a treaty cannot appropriate money. It seems to me that the administration agrees and I had assumed that the debates over the Jay's Treaty in 1795 had established that. The House and the House alone begins appropriations bills and they have to be by Congress, not by treaty.

Mr. TANNENBAUM. So you say unequivocally that is an exclusive power of the Congress?

Professor PowE. Yes.

Mr. TANNENBAUM. Thank you.

The CHAIRMAN. Thank you very much, Doctor.

The CHAIRMAN. Our next witness is Mr. George Stephen Leonard, the attorney for Members of the Senate and various State attorneys general who have filed suit to test whether, under the constitutional provisions for the separation of powers, the executive branch may dispose of the Panama Canal by treaty alone.

Thank you, Mr. Leonard, for being here.

STATEMENT OF GEORGE STEPHEN LEONARD, ESQ., ATTORNEY, WASHINGTON, D.C.

Mr. LEONARD. I appreciate that, Mr. Chairman.

First I would like to identify myself, in addition to the statement made by the chairman. I would like to point out that 5 of the States of the Union, 4 Senators, 1 of the members of this House, and 1 of the 3,500 U.S. citizens who are residents in the Canal Zone, each joined in attempting to have the courts resolve this particular question. As of Monday of this week, they were totally unsuccessful, making the Supreme Court the sixth court in succession which has refused to consider the problem.

I would like to say this about Dr. Powe. Dr. Powe approaches this from an academic point of view. I am, of course, a practicing litigator, so that I approach it purely from the point of view of the decisions which have been issued and of the courts which will hear them, and arguments can always be made for either view. However, I

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