Panama Canal Treaty

The subcommittee met, pursuant to recess, at 8 a.m., in room 6202, Dirksen Senate Office Building, Senator James B. Allen (chairman of the subcommittee) presiding.

Also present: Senators Hatch and Scott.

Staff present: Quentin Crommelin, chief counsel and staff director; James McClellan, professional staff (minority); Paul Guller, editorial director; and Melinda Campbell, chief clerk.

OPENING STATEMENT OF CHAIRMAN ALLEN

Senator ALLEN. The meeting will please come to order.

The Subcommittee on Separation of Powers is convened this morning to continue the subcommittee's investigation of the constitutional issues surrounding the negotiations of the executive branch with the Government of the Republic of Panama regarding the territory and property of the United States in the Panamanian Isthmus.

The subcommittee is pleased to have for this mornings hearing a distinguished group of witnesses from Government, from the legal profession, from the academic community, and from organized laborall of whom are in some way affected by or involved in the canal negotiations.

I am certain that most of those present this morning are well aware of the central constitutional issue under investigation; however, perhaps it would be helpful for me to reiterate the propositions which are the focal point of this inquiry.

DISPOSAL OF U.S. TERRITORY

Article IV, section 3 of the Constitution of the United States provides that Congress "Shall have power to dispose of and make all needed rules and regulations respecting the territory or other property belonging to the United States." Many scholars of the Constitution believe the power given to Congress in that clause is exclusive,

(1)

which would prohibit the Eexecutive from negotiating a treaty disposing of United States territory except with congressional consent. On the other hand, some constitutional lawyers have postulated the theory that the power of the Congress to dispose of the territory and property of the United States is not exclusive but is rather concurrent with the power of the executive branch to conclude treaties with the advice and consent of the Senate.

In any event, the subcommittee, I am sure, does wish to explore the issue fully so that all the facts are developed to enable the subcommittee to advise properly both the Committee on the Judiciary and the Senate on this point of constitutional law which is of particular national importance in the circumstances surrounding our discussions with the Panamanian Government.

FINANCIAL ASSISTANCE

Additionally, members of the subcommittee are also concerned that certain other agreements with the Panamanians for direct financial assistance may be in process of being concluded outside the context of the treaty negotiations with the result that any such agreement might not be subjected to the normal treaty ratification process which would be necessary otherwise. The press has mentioned a possible total of $5 billion.

Direct financial assistance of that magnitude would, of course, be made subject to specific congressional action through the appropriations process, but if such assistance were, in fact, an integral part of the treaty, then as such it would also be subject to ratification by the Senate.

The subcommittee will, therefore, require testimony on the intentions of the executive branch with respect to separately negotiated financial arrangements with the Panamanians so that the subcommittee can determine whether the result of such negotiations should be addressed by the Senate as part of the proposed canal treaty.

SCHEDULED WITNESSES

Our investigation will be greatly assisted today by the testimony of witnesses from the Department of State and from the Department of the Treasury. The subcommittee will, moreover, particularly value the testimony of Senator Hayakawa, Congressman Flood, and the other fine and knowledgeable individuals who have, in some instances, traveled thousands of miles in order to appear before us.

The first witnesses this morning are Mr. Robert Beckel, Deputy Assistant Secretary of State for Congressional Relations, and Mr. Herbert J. Hansell, the Legal Adviser to the Secretary of State. Gentlemen, we look forward very much to hearing your testimony and we are indeed pleased to have you here. You may proceed as you see fit.

We welcome your testimony because we do feel that we do have an issue here that should be explored. The attitude of the State Department with regard to this issue is of great importance. We are anxious to learn the position of the State Department in this matter.

Will others testify besides yourself or will they be here to advise you?

TESTIMONY OF HERBERT J. HANSELL, LEGAL ADVISER, U.S. DEPARTMENT OF STATE; ACCOMPANIED BY MARK B. FELDMAN, DEPUTY LEGAL ADVISER, U.S. DEPARTMENT OF STATE; STEFAN A. RIESENFELD, COUNSELOR ON INTERNATIONAL LAW, PROFESSOR OF LAW, UNIVERSITY OF CALIFORNIA, BERKELEY, CALIF.; AND ROBERT G. BECKEL, DEPUTY ASSISTANT SECRETARY FOR CONGRESSIONAL RELATIONS, U.S. DEPARTMENT OF STATE

Mr. HANSELL. They will advise and also respond to questions, of

course.

Senator ALLEN. That is fine. Please proceed.

Mr. HANSELL. Mr. Chairman, and members of the committee. I am Herbert Hansell, Legal Adviser, Department of State. I am pleased to have this opportunity to appear before you this morning.

With me this morning are Mark Feldman, Robert Beckel, and Stefan Riesenfeld.

The purpose of those negotiations is to agree upon a new treaty relationship to govern U.S. operation and defense of the canal until the end of the century; and to establish its neutrality thereafter. It is not my purpose today to comment on the substance of the negotiations; the administration has been consulting with Members of Congress throughout the negotiations to keep them informed, and will be continuing those consultations.

We intend that any new relationship between the United States and Panama concerning the canal that may be negotiated will be incorporated in a treaty and submitted to the Senate for its advice. and consent to ratification.

Under any new treaty with Panama for the operation and defense of the canal, the Congress will have continuing legislative responsibility over such matters as U.S. defense activities in Panama, organization functioning of the canal operation, financial management of the canal, employee relations, and navigation. In addition, specific legislation will be required to implement many aspects of the new relationship, including the establishment of a new canal operating agency, and a new employment system, and measures concerning the financial management of the canal.

While it is clear that extensive implementing legislation will be required for this treaty, we have not been able to determine precisely the nature of that legislation since the terms of the treaty are still under negotiation. Thus, let me say at the outset that no decision has been reached as yet concerning the manner in which any transfers of U.S. property to Panama would be effected. However, I would emphasize, Mr. Chairman, that whatever the outcome of that particular question may be, the House of Representatives will in any event, have a major role in the creation and implementation of any new relationship between the United States and Panama.

I would like now to discuss with you our view on the legal question of whether legislation is required by the Constitution for a transfer of property belonging to the United States or whether the treaty power can be utilized for that purpose.

The nub of the problem is the interrelation of the treaty power clause of the Constitution [art. 2, section 2, cl. 2] and the property clause of the Constitution [art. 4, section 3, cl. 2].

Article 2, section 2, clause 2 dealing with the powers of the President, states:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur.

Article 4, section 3, clause 2 provides:

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; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Nothing in the language of the two clauses limits the treaty power with respect to disposition of property or makes the power of Congress with respect to disposition of property exclusive. As Mr. Justice Field stated in Geofroy v. Riggs [133 U.S. 258 at 267, 1890],

The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument. . . .

But there is no restraint expressed in respect to dispositions. The property clause, like most of the clauses granting legislative powers contained in article 1, section 8, provides that "Congress shall have power," without any qualification indicating exclusiveness against the treaty power.

This position is strongly supported by the place of article 4, section 3, clause 2 in the text of the Constitution, as well as by the history of the two clauses. It is buttressed by judicial decisions and by precedents in U.S. treaty practice. I would like to elaborate on these points briefly.

Although at an early period of our constitutional history, Thomas Jefferson seems to have suggested in his "Manual of Parliamentary Practice" that the treaty power does not extend to subjects of legislation, this narrow construction has never been accepted in practice and is rejected by a long line of Supreme Court decisions. Today the rule is firmly settled that treaties may be concluded on any subjects appropriate for international negotiation, and that treaty power extends to all areas within the legislative authority of Congress that are not expressly reserved by the Constitution to the exclusive jurisdiction of Congress. Under article 6, clause 2 of the Constitution all treaties made under the authority of the United States which are self-executing take effect as the law of the land without further legislative action. The Constitution contains very few exceptions limiting the treaty power with respect to specific subjects. Principal instances are article. 1, section 7, clause 1 and article 1, section 9, clause 7. The former clause provides that "all bills for raising revenue shall originate in the House of Representatives." The second clause cited ordains that "no money shall be drawn from the Treasury, but in consequence of appropriations made by law." Hence, it is recognized that treaties may neither impose taxes nor directly appropriate funds.

The property clause contains no language excluding concurrent jurisdiction of the treaty power. In fact, the placement of the property clause in article 4 of the Constitution, which deals with Federal-State

« Previous Continue »

Books

Panama Canal Treaty: Disposition of United States Territory : Hearing Before ...