committee. The development of overwhelming executive power cannot be accepted with equanimity; issues of fundamental Constitutional importance are raised by it, not the least of which is the decline of the traditional doctrine of separation of powers and the intrusion of the executive and judiciary into the responsibilities of Congress. But the Congress has not been without fault in permitting this to occur. For far too long, both Houses have somnolently acquiesced in a massive transfer of the legislative power of government from the Congress, where Constitutionally it should reside, to the executive branch and to the judiciary, neither of which has Constitutional authority to exercise it.

The most frequently heard rationalization for this development has been that executive dominance was necessary if there was to be any efficiency in the operation of the government. This justification for the sake of efficiency is grounded on the assumption that, in the modern era, it is necessary to find solutions to society's problems rapidly and to apply them without delay. The processes of the legislative branch are considered too cumbersome to be tolerated and therefore must be bypassed in favor of the executive branch, where an unelected official or an entire agency can assume the power to act and to act without delay and where programs can be developed with a view to their overall impact and without regard to the opinion of voters.

Although the Subcommittee is well aware of the pressing need for improving Congress' capacity to receive, assimilate, and deal with the complex data available in modern times, such concentration of power in the executive is not necessary for the efficient operation of government. The doctrine of separation of powers need not be a roadblock to the effective operation of the American government. Even if it appears to be such a barrier at times, it represents an essential ingredient of a democratic system; Congress provides the only forum in the nation where existing and proposed public policies can be exposed to the full debate necessary for the promulgation of wiser programs. Furthermore, as Justice Louis Brandeis said more than 50 years ago:

The doctrine of separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy. Myers v. United States, 272 U.S. 52, 293 (1920).

Milton's observation that "necessity is the plea of every tyrant" is a short but complete answer to the argument that is often made that the exigencies of international relations or domestic crisis require or necessitate rapid action that can be accomplished only by the executive. This is not to say that this, or any other administration, is or has been tyrannical; but it is to say that the potential for tyranny is real and that further erosion of the principle of separation of powers, especially in the area of foreign policy, will be disastrous to the Constitutional liberties we presently enjoy within our own country.

Thus, the Constitutional prerogatives of Congress must be preserved, even at the price of possible inconvenience to the executive branch in its dealings with foreign governments. And although the

steady, and not particularly slow, increase in executive power vis-a-vis the Congress is clearly discerned throughout all governmental affairs during recent decades, the Subcommittee does find that it is a particularly alarming trend in the conduct of foreign relations. Consistent with this process of aggregation of all power in matters relating to foreign affairs, the executive branch, in proposing for the first time in our history by treaty alone to dispose of the property of the United States in the Isthmus of Panama, is seeking to arrogate to itself, under a novel theory, a power which until now has been exclusively exercised and jealously guarded by the Congress.

In analyzing the dangerous potential consequences of this latest attack on the prerogatives of Congress, the Subcommittee has been guided in its work by the words of its first chairman, Mr. Ervin:

The history of liberty is the history of the limitation of governmental power, not the increase of it. . . Concentration of power always precedes the destruction of liberty. The Subcommittee has also highly valued the comment of Prof. Charles E. Rice of the University of Notre Dame Law School:

I hope that the consideration of the Panama Canal treaties, including particularly the treaty providing for transfer of United States property, will provide an occasion for the reaffirmation of the Congressional power with respect to the disposition of the territory or other property of the United States. Congress' power in this area ought to be regarded as exclusive. The American people ought to be deprived of their territory and property only by action of that governmental body most responsive to public opinion. That body is the entire Congress and most especially the House of Representatives.2

Issue presented-jurisdictional base

In accordance with its mandate to study the separation of powers between the executive, judicial, and legislative branches of the government provided by the Constitution and pursuant to the provisions of Section 3 of Senate Resolution 170, the Subcommittee began, on July 22, 1977, to conduct an investigation of executive branch negotiations for the disposition by treaty of United States territory and property in the Isthmus of Panama.

The Constitution provides in Article IV, Section 3, clause 2 as follows:

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.

Thus, the primary separation of powers issue studied by the Subcommittee was whether the executive branch could, without prior statutory authority and acting independently of the Congress, alienate territory or other property of the United States by concluding a treaty

2 Statement by Prof. Charles Rice to the Subcommittee on Separation of Powers included herein at app. 1.

to that effect with a foreign power-in this case, with the Republic of Panama.3

Hearings conducted

During the course of its investigation, the Subcommittee held seven separate hearings and received the testimony of 34 witnesses. Three volumes of testimony have been published as of the date of this report together with a printed digest of information collected by the Subcommittee staff from other sources.

Witnesses who appeared before the Subcommittee included a crosssection of authorities on all aspects of the issue under study. The Subcommittee was able to obtain the testimony of several outstanding Constitutional scholars, most notably Professor Raoul Berger and Professor Charles Rice. Additionally, representative witnesses from the legal profession, Judge Guthrie F. Crowe, George S. Leonard, and Leonard Meeker, provided useful information to the Subcommittee. Several Members of Congress contributed significantly to the Subcommittee's study. Chief among these were Senators Gravel, Hayakawa, Helms, and Thurmond, and Congressmen Flood, Crane, and Murphy. The Subcommittee also was particularly fortunate to receive the testimony of Governor Ronald Reagan, Admiral Thomas Moorer, and Admiral John McCain. The executive branch was represented before the Subcommittee by Maj. Gen. Harold R. Parfitt, Governor of the Panama Canal Zone; Lt. Gen. Dennis P. McAuliffe, Commander in Chief of the U.S. Southern Command; Herbert J. Hansell, Legal Adviser to the Secretary of State; Robert B. Beckel, Deputy Assistant Secretary of State for Congressional Affairs; Stephen A. Riesenfeld, Department of State Counsellor on International Law and professor of law at the University of California, Berkeley; Russell L. Munk, Assistant General Counsel for International Affairs at the Department of the Treasury; and Arnold Nachmanoff, Deputy Assistant Secretary of the Treasury for Developing Nations. The Subcommittee sought but was unable to obtain the testimony of Anthony Solomon, Under Secretary of the Treasury for Monetary Affairs.

The foregoing witnesses provided a vast amount of information. both on the Constitutional issues associated with the proposed Panama Canal Treaty and Neutrality Treaty (Executive N, 95-1) and on the practical and potential effects of the various treaty provisions. Although incidental to its inquiry, the Subcommittee was struck by several treaty provisions which appeared defective on their face, and although these issues were not directly involved in the investigation of the Subcommittee, Chairman Allen has stated the view that the Subcommittee "performed a doubly useful function, both by reviewing the Constitutional issues associated with the treaties and by providing a forum for airing other issues which might otherwise have gone undiscussed."

Issue defined

As noted, the principal issue studied by the Subcommittee on Separation of Powers was whether the President by virtue of the treaty

3 The Subcommittee study also focused in part on the possible improper use of executive agreements in concluding the new proposed treaty arrangements with Panama and in circumventing the Congressional appropiiations process. That aspect of the Subcommittee's investigation will be the subject of a second report.

making power exercises concurrent power with the Congress in the disposal of United States property to a foreign government. Therefore, not at issue were such questions as whether the United States is sovereign within the Panama Canal Zone or whether the proposed disposition of property is itself advisable. The Subcommittee affirms that the existence of full sovereignty of the United States in the Canal Zone is a close question, charged with emotion, but the Subcommittee further observes that the operative language of the Constitution grants to Congress power to dispose of "territory or other property", thus making it a moot question for the purposes of this report whether the United States is or is not sovereign in the Canal Zone and even whether or not the Zone is, in fact, unincorporated territory of the United States as the courts have consistently held; e.g., United States v. Husband, 453 F.2d 1054 (5 Cir. 1971) cert. den. 406 U.S. 935 (1972). Similarly, the Subcommittee notes that strong arguments can and have been made regarding virtually every aspect of the contemplated disposition of the Canal Zone to the Republic of Panama, and the Subcommittee does not intend this report to imply approval or disapproval of the proposals embodied in the Panama Canal Treaty or the Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal. Finally, inasmuch as nowhere has the claim been made that Congress does not have power to dispose of the territory or other property of the United States, the only issue addressed by this report is whether that power is exclusive.

A framework for analysis

Beginning in September, 1977, at the request of the Subcommittee, Professor Raoul Berger started a review of all of the testimony previously received by the Subcommittee and undertook a detailed two-month study of all other available information which might bear on reaching a proper conclusion in resolution of the property disposal issue. Professor Berger's work assisted the Subcommittee in synthesizing the vast amount of testimony received during the conduct of hearings and contributed significantly in aiding the Subcommittee in forming a final opinion and in developing recommendations for appropriate action. The Subcommittee has been particularly disposed to rely on Professor Berger's judgment since his personal opinion generally favoring ratification of the proposed treaties tends to insure objectivity in reviewing the Constitutional issue by guaranteeing a receptive approach to the novel arguments of the Department of State favoring concurrent Presidential treaty power to dispose of property. At the outset, Professor Berger stated:

I want to make clear that I am for the Panama Canal Treaty as a matter of personal judgment. I am not here in any way to discredit President Carter. I am here because I have an overriding commitment to the Constitution.

Starting from that commitment and, we believe, from a position of objectivity, Professor Berger summarized for the Subcommittee the history of Article IV, Section 3 and comparable proposals advanced during the deliberations of the Framers at the Constitutional Conven

Professor Berger has been the Charles Warren. Sr., Fellow of the Harvard Law School and has authored "Government by Judiciary" and "Executive Privilege."

tion. He also traced the use of Article IV, Section 3 through subsequent practice after adoption of the Constitution down until the present day. He covered extensively all case law said to be relevant to the issue and analyzed for the Subcommittee in detail the statement addressed to Senator Clark by Dean Louis H. Pollak of the University of Pennsylvania dated January 10, 1978, as well as the Opinion of the Attorney General of the United States issued on August 11, 1977, both of which documents state the position of the executive branch that the power to dispose is not exclusively in Congress.

When ultimately asked by the Subcommittee if the power given to Congress under Article IV, Section 3, clause 2 of the Constitution to dispose of territory or other property of the United States was an exclusive power not given to the President under the treaty power except pursuant to prior Congressional authorization, Professor Berger replied:

Yes, and I would add that I base that opinion not on any claim of authority as a Constitutional scholar-although I have been studying Constitutional law a long time-but I base it on a particular, painstaking, extended study of this very problem against the background of every case that has been cited to you by the various other witnesses. It is an independent study. My study of the cases has led me to conclude that the power is indeed exclusive in the Congress.

Certainly the face of the Constitution itself indicates that the power is exclusive and nothing has been summoned by the Department of State or the Department of Justice, in my judgement, which vitiates that view.

Professor Berger's thorough analysis of the Attorney General's Opinion persuaded the Subcommittee that the conclusion of the Attorney General was clearly incorrect insofar as it asserted that the President could exercise by treaty concurrent power with the Congress to dispose of U.S. territory or property. Candidly, the Subcommittee is inclined to share Professor Berger's view of the Attorney General's Opinion which view he summarized somewhat subtly in this fashion:

I approach the Attorney General's statement with something less than awe. By this I mean no disrespect to the Attorney General personally. I did not have time to find the lovely statement by Justice Jackson where he contritely rejected a formal opinion that he had signed as Attorney General, noting the possibility that he may not have had time truly to study the issue while serving in that capacity. Bearing in mind the torrent of things that have to be signed by the Attorney General, one can hardly ask him to rush out to the library as did old man Berger to read for himself U.S. v. Perchman and the other cases he cited. This is without any disrespect to the Attorney General personally. Attorneys General have to rely on their subordinates.

In short, Professor Berger demonstrated to the Subcommittee on a case-by-case basis the paupacy of each argument advanced by the

The Opinion of the Attorney General together with Professor Berger's analysis of it are included herein as Appendix I. Appendix I also contains the Statement of Professor Charles Wright.

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