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the procedure specified in the Constitution, has asked the
which the President expressly contemplates. (Pollak 19n) Since fulfillment of that “partnership role” (for which I broke more than one lance) was many times frustrated by attaching the "executive agreement” label to treaties, I may be pardoned for being skeptical about the rake's reform. Permit me to close with the words of Alexander Hamilton, the great proponent of expansive presidential power:
An agent cannot new model his own commission. A treaty cannot transfer the legislative power to the executive department.23
23 “Letters of Camillus," 6 A. Hamilton, Works 166 (Lodge ed. 1904).
STATEMENT BY RAOUL BERGER BEFORE THE SUBCOMMITTEE ON THE
PANAMA CANAL OF THE COMMITTEE ON MERCHANT MARINE AND FISHERIES OF THE HOUSE OF REPRESENTATIVES
HEARINGS ON THE PANAMA CANAL TREATIES, WASHINGTON, D.C.,
JANUARY 18, 1978
You have invited me to comment on the relation between the Article IV, 83(2) power of Congress to dispose of property of the United States and the treaty power. Although I am in favor of the Panama Canal Treaty, 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 overleap 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. 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, $ 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.” How are the two provisions to be accommodated ? For present purposes the question whether the United States has “sovereignty” over the Panama Canal need not detain us because, in my judgment, the grant of “use and occupation . . . in perpetuity” constitutes "property” no less than the familiar lease of realty for 99 years. 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 1942, the President, by Executive Agreement, promised to return certain installations to Panama subject, however,