Such legislation by the Congress has directed the form and

substance of the governance of the administration and jurisprudence of the Canal Zone, culminating in a comprehensive revision thereof in Public Law 87-845, 76 A. Stat. 1, 48 U.S.C. §§ 1301 et seq., the Canal Zone Code, which became effective January 2, 1963, and includes in part a Congressional guarantee of civil rights under the law of the United States to all residents of the Canal Zone (1 C.Z.C. 31) and the establishment of the necessary courts and a judiciary for their enforcement

(3 C.Z.C. 141).

On considering the facts of this acquisition the courts have unanimously recognized that the Canal Zone has become a territory of the United States and that the title of the United States to the Zone is

204 U.S. 24, 33, 27 S.Ct. 233, 235 (1907)

Accord: Lucas v. Lucas, 232 F. Supp. 466, (D.C.C.Z., 1964); Huasteca
Petroleum Co. v. United States, 14 F.2d 495 (E.D.N.Y. 1926).

The first change in this picture came in 1974 when former
Secretary Kissinger issued a joint proclamation with Foreign Minister
Tack of Panama which provided in part:

"The United States and Panama agreed that the
Treaty of 1903 should be replaced by a modern
treaty that rejects the concept of perpetuity

"

This joint statement of 1974 is conceded by the Department of

State to provide the framework for its present negotiations. Secretary of State Vance has publicized his intention to conclude a new treaty as soon as practicable. Originally this was to be done by June of this year. Since, the State Department has revised its prediction, and is reportedly now hoping to complete the new treaty by late summer.

II

The Constitutional Power Over
Disposition of Territories

1. The Constitution provides complete Congressional power over the disposition and governance of territories under Art. IV, section 3, clause 2 which reads,

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

This power gives Congress the authority to prescribe the times, conditions and mode of any transfer, and the right to designate the persons to whom any transfer will be made, Gibson v. Chouteau, 13 Wall. 92, 99 (1872), Irvine v. Marshall, 20 How. 558 (1858), Emblen v. Lincoln Land Co.,

184 U.S. 660, 664, 22 S.Ct. 523, 525 (1902). Reaffirming this principle the Supreme Court in Sierra Club v. Hickel, 433 F.2d 24, 28 (9 Cir. 1970) aff'd, 405 U.S. 727, 92 S.Ct. 1361 (1972) stated that,

"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 to dispose of property belonging to the United States is "exclusive", Griffin v. U.S., 168 F.2d 457 (8 Cir. 1948), United States v. Fitzgerald, 40 U.S. 785, 15 Pet. 407, 421 (1841); Osborne v. United States, 145 F.2d 892 (9 Cir. 1944); Alabama v. Texas, 347 U.S. 272, 74 S.Ct. 481 (1954).

Therefore, any authority of the Executive to dispose of property of the United States must be first derived from authority given by an Act of Congress, Tugade v. Hoy, 265 F.2d 63 (9 Cir. 1959) (the Philippines).

2. The State Department does not deny the Congressional right in this matter but has asserted that under the Constitutional treaty power (Art. II, sec. 2), the President holds concurrent authority to dispose of United States property.

So far as my research shows, no court or even commentator has ever supported this concurrent power theory. Actually there have been many rulings by the Courts that such an authority does not exist, and that the President's treaty power is limited wherever primary authority has been granted to other branches of government by the Constitution.

DeGeofroy

v. Riggs, 133 U.S. 258, 267, 10 S.Ct. 295, 297 (1890) Wisconsin R. Co. v.
Price County, 133 U.S. 496, 507 (1890); Peirce v. State of New Hampshire,
13 N.H. 536, aff'd 46 U.S. 504, 5 How. 504, 12 L. Ed. 256 (1847), Zweibon
v. Mitchell, 516 F.2d 594 (1975), Consumers Union of U.S. v. Rogers,
352 F. Supp. 1319 (D.D.C. 1973); Schactman v. Dulles, 255 F.2d 938, 945
(U.S. App. D.C. 1955, conc. op. of Edgerton, J); Farmer v. Rountree,

149 F. Supp. 327 (M.D. Tenn. 1956) aff'd 252 F.2d 490 cert. den. 337 U.S. 906.

3.

And even if this new claim of concurrent presidential treaty power to dispose of territory were valid, it could not be used to contravene existing legislation which the President has sworn to uphold and enforce. An example of true concurrent powers exists in the field of foreign commerce. But the exercise of such power by the President through a treaty has been held to be circumscribed by prior legislation dealing with the subject.

"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."

Consumers Union of U.S., Inc. v. Rogers

352 F. Supp. 1319 (D.D.C. 1973) at pp. 1322-1323

"Support for judicial deference to

executive actions in the area of foreign
affairs is found in United States v. Curtiss-
Wright Export Corp., 299 U.S. 304 (1936) and
Chicago & Southern Air Lines v. Waterman
Steamship Corp., 333 U.S. 103 (1948). Without
deprecating the support given by dicta in these
opinions to inherent presidential authority in
foreign affairs, wè 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 upon his own constitutional
powers minus any constituitonal 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.

་་་

United States v. American Telephone and
Telegraph Company, et al. and John E. Moss,
Member, United States House of Representatives,
551 F.2d 384 (U.S. App. D.C. Dec. 1976)

Such legislation not only exists with respect to the Canal Zone,

Reference

it was passed with the concurrence of the Senate and the President.
has been made for example to the Canal Zone Code. As a result, every prior
executive proposal to turn over portions of the Canal Zone to the Republic
of Panama have been made only in accordance with Congressional direction,
e.g. Stat. (pt. 2) 1289, EAS No. 452.

"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," etc.

Congress did so authorize the transfer, Act of May 3, 1943, ch. 92,
57 Stat. 74.

In 1973 President Nixon announced that he would propose a bill

to Congress in order to dispose of two Zone airfields to Panama, 70 Dep't State Bull. 456 (1974) but never did so, nor were treaties even submitted

for the purpose.