of territory or property. See 2 M. Farrand, The Records of the Federal Convention of 1787 457-59, 461-66 (rev'd ed. 1937) [hereinafter cited as Farrand).

The history of the treaty clause is even more conclusive. During the course of the convention several proposals were put forth. One would have required every treaty to be approved by both Houses of Congress. 2 Farrand, supra, at 532, 538. That proposal was rejected. Another would have required the Senate to concur in treaties, but would have exempted peace treaties from that requirement, except for peace treaties depriving the United States of territory or territorial rights. 2 Farrand, supra, at 533-34, 543. That proposal was rejected as well. In its place, the convention adopted a proposal that required the Senate to concur in all treaties.

It may be possible to interpret these actions in a different way, but the simplest and, for me, the most persuasive interpretation is this: the delegates to the convention assumed (1) that the treaty power could and would extend to questions of territory, and (2) that treaties, including treaties affecting rights in territory, could be effective in the absence of action by both Houses."

This brings me to the third consideration that supports my basic conclusion. To the extent that the Supreme Court has spoken to the question, the Court has said that the President, with the concurrence of the Senate, may conclude a treaty disposing of territory or property belonging to the United States, and that such a treaty may convey good title to the territory or property in question.

No act of Congress is required. United States v. Brooks, 10 How. 442 (1850); Doe v. Wilson, 23 How. 457 (1859); Holden v. Joy, 17 Wall. 211 (1872); Best v. Polk, 18 Wall. 112 (1873); Francis v. Francis, 203 U.S. 233 (1906). The dictum in Holden v. Joy is one of the clearest statements of this principle: "[I]t is insisted that the President and Senate, in concluding such a treaty, could not lawfully covenant that a patent should be issued to convey lands which belonged to the United States without the consent of Congress, which cannot be admitted. On the contrary, there are many authorities where it is held that a treaty may convey a good title to such lands without an act of Congress conferring it. *** [17 Wall, at 247]."

I do not hold that these cases provide a sufficient answer to the question you have raised. They all involved Indian treaties and questions of "title" to real property. I do think, however, that the principle for which they stand is one of general application; that it bears upon your question; and that it supports the conclusion I have reached. These cases, when viewed in light of the textual and historical considerations I have already mentioned, provide substantial support for the proposition that a treaty disposing of territory or property belonging to the United States may be self-executing. I find no cases to the contrary.

Finally, my conclusion is supported by historical practice. While I do not suggest that the commands of the Constitution may be attenuated by persistent practices not in conformity with them, I must observe that as a matter of historical fact the President and the Senate have made self-executing treaties disposing of territory or property belonging to or claimed by the United States.

I shall mention one rather clear example of the practice. Under the Florida Treaty with Spain (1819) the United States ceded all its territory beyond the Sabine River in Texas to Spain in return for the cession of the Spanish territories of East and West Florida. 8 Stat. 252, T.S. No. 327. While there had been some dispute over some of the relevant boundaries, the congressional debates, as well as President Monroe's annual message to Congress, make it clear that many considered the action to be an outright cession of American territory in exchange for Spanish territory. 36 Annals of Congress 1719–38, 1743–--; 2 J. Richardson, Messages and Papers of the Presidents 33 (1896). No statute authorizing the American cession was ever enacted."

I should note that this very point was considered in the State conventions that were called to ratify the new Constitution. The obiection was made that the treaty clause care the President and the Senate power to alienate territory. The Virginia and North Carolina conventions proposed a remedial amendment that would have required every treaty ceding or compromising rights or claims of the United States in territory to be approved by three-fourths of the members of both Houses of Congress. 2 Documentary History of the Constitution 271, 382 (in U.S. Cong. Doc. Ser., No. 4185); see generally 8. Crandall, Treaties Their Making and Enforcement 220-21 (2d ed. 1916).

The self-executing effect of the Spanish cession was the subject of two decisions by the Supreme Court. Foster v. Neilson, 2 Pet. 253 (1829); United States v. Arredondo 6 Pet. 691 (1832). Congress did enact legislation authorizing the President to take possession of the Spanish cessions and to provide rules for their government. Act of March 3. 1819, c. XCIII, 3 Stat. 523, Act of March 3, 1821, c. XXXIX, 3 Stat. 637.

There have been a number of other treaties that have been self-executing insofar as they have disposed of territory or property belonging to the United States or have compromised a claim of the United States to property or territory claimed by a foreign power.' I do not believe that the validity of these treaties could be questioned today.

IV

In stating my opinion with respect to the question we have raised, I have taken note of general principles that bear upon the relation between congressional power and the power of the President and the Senate under the treaty clause; but I have no occasion to express an opinion with respect to any other questions that may arise in that context, and I express none.

Sincerely,

GRIFFIN B. BELL,
Attorney General.

See, e.g., United States-Great Britain Treaty of 1842 (Webster-Ashburton). 8 Stat. 572, T.S. No. 119; United States-Great Britain Treaty in Regard to Limits Westward of the Rocky Mountains of 1846 (Oregon Treaty), 9 Stat. 869, T.S. No. 120.

STATEMENT BY PROFESSOR RAOUL BERGER BEFORE THE SENATE SUBCOMMITTE ON SEPARATION OF POWERS, HEARINGS ON THE PANAMA CANAL TREATIES, WASHINGTON, D.C., NOVEMBER 3, 1977

You have invited me to comment on the relation between the Article IV, Section 3 (2) power of Congress to dispose of property of the United States and the treaty power, in light of the statements respecting the relation by Herbert J. Hansell, Legal Advisor, Department of State,1 and Ralph E. Erickson, Deputy Assistant Attorney General. 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 these boundaries. No agent of the people may overlap the bounds of delegated power. That is the essence of constitutional government and of our democratic system.

Long experience has led me to be skeptical of arguments by representatives of the Executive branch when they testify with respect to a dispute between Congress and the President, for they are then merely attorneys for a client, the President. It was for this reason that Justice Jackson dismissed his own prior statements in the capacity of Attorney General as mere advocacy, saying, a "judge cannot accept self-serving press statements for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself." The Hansell-Erickson testimony did not serve to diminish my skepticism.

The effect of these hearings ranges beyond the Panama treaty. 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. Acquiescence in such claims spells progressive attrition of Congressional powers; it emboldens the Executive to make ever more extravagant claims. I would remind you that Congressional acquiescence encourages solo Presidential adventures such as plunged us into the Korean and Vietnam wars. Congressional apathy fostered the expansion of executive secrecy. Then as now the State Department invoked flimsy "precedents," for example, the pursuit of cattle rustlers across the Mexican border, to justify presidential launching of a full scale war. If Congress slumbers in the face of such claims it may awaken like Samson shorn of his locks.

Earlier judicial statements that this or the other executive practice has been sealed by long-continued Congressional acquiescence need to be reexamined in light of more recent judicial opinions, more conformable to the Constitution, that Congress may not abdicate its powers," and a fortiori, it cannot lose them by disuse, that usurpation cannot be legitimated by repetition. Senatorial in

1 Hearings on the Panama Canal Treaty before the Senate Subcommittee on Separation of Powers (95th Cong. 1st Sess.) Part II, p. 3 (July 29, 1977), hereafter cited as Hansell, 2 Hearings before the House Subcommittee on the Panama Canal on "Treaties Affecting the Operations of the Panama Canal," (92 Cong. 2d Sess.) p. 95 (December 2, 1971), hereafter cited as Erickson.

3 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 647 (1952), concurring opinion. R. Berger, "Executive Privilege: A Constitutional Myth," 75-88 (1974).

5 Congress "uniformly and repeatedly acquiesced in the practice." "It may be argued that while the facts and rulings prove a usage they do not establish its validity. But government is a practical affair intended for practical men. Both officers, law-makers and citizens naturally adjust themselves to any long continued action of the Executive Department-on the presumption that unauthorized acts would not have been allowed to be so often repeated as to crystallize into a regular practice." United States v. Midwest Oil Co. 236 U.S. 459, 471 (1915). But as Justice Frankfurter later declared. "Deeply embedded traditional ways of conducting a government cannot supplant the Constitution or legislation ." Youngstown Sheet, supra, n. 3 at 610, concurring opinion. Panama Refining Co. v. Ryan, 293 U.S. 388. 421 (1935).

7 United States v. Morton Salt Co., 338 U.S. 632, 647 (1950).

"That an unconstitutional action has been taken before surely does not render that same action less unconstitutional at a later date." Powell v. McCormack, 395 U.S. 486, 546-547 (1969). Zweibon v. Mitchell, 516 F.2d 594, 616 (D.C. Cir. 1975): "there can be no doubt that an unconstitutional practice, no matter how inveterate, cannot be condoned by the judiciary." United States v. Morton Salt Co.. 338. U.S. 632, 647 (1950): "nonexistent powers can [not] be prescribed by an unchallenged exercise. . .

sistence on respect for constitutional boundaries will warn the Executive against encroachments on Congress' powers; 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 full Congress.

Mr. Erickson, addressing himself to the question whether Article IV, Section 2 (3), "pursuant to which Congress has the power to dispose of property of the United States is an exclusive grant of legislative power to the Congress or whether the Congress and the President and the Senate, through the treaty power, share that authority," handsomely states that "the answer to this question is not simple and altogether free from doubt." That doubt counsels against encroachments on a power explicitly conferred on Congress; a clear case for establishment of "concurrent jurisdiction" is needed in the teeth of that express grant.

In support of the claim that the President and Senate enjoy "concurrent power" to dispose of United States property, Messrs. Hansell and Erickson invoke a melange of dicta, without weighing even stronger statements that Congress' disposal power is "exclusive." Thus the Supreme Court declared that Article IV "implies an exclusion of all other authority over the property which could interfere with this right or obstruct its exercise." 10 Echoing such judicial statements, an opinion of the Attorney General stated in 1899 that "The power to dispose permanently of the public lands and public property in Puerto Rico rests in Congress, and in the absence of a statute conferring such power, cannot be exercised by the Executive Department of the Government."

99 11

12

Such statements respond to two cardinal rules of construction. First there is the rule that express mention signifies implied exclusion, which the Supreme Court has employed again and again: "When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode." " The rule was invoked by the Founders; for example, Egbert Benson said in the First Congress, in which sat many Framers and Ratifiers, that "it cannot be rationally intended that all offices should be held during good behaviour, because the Constitution has declared (only) one office to be held by this tenure." "The fact, emphasized by Hansell, that "The property clause contains no language excluding concurrent jurisdiction of the treaty power" is therefore of no moment. Having given Congress the power to dispose of public property, it follows that the President and Senate were "impliedly excluded" therefrom. Second there is the settled rule that the specific governs the general: where there is in an act a specific provision relating to a particular subject, that provision must govern in respect to that subject as against general provisions in other parts of the act. although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates."

99 14

In terms of the present issue, the specific power of disposition governs the general treaty provision.

Under these rules it is of no avail that, according to Hansell, "there is no restraint expressed in respect to dispositions" in the treaty power itself. For this Mr. Hansell relies on Geofroy v. Riggs: "The treaty power, as expressed in the

Erickson 97.

10 Wisconsin Cent. R.R. Co. v. Price County, 133 U.S. 496, 504 (1890); see also Swiss Nat. Ins. Co. v. Miles, 289 Fed. 571, 574 (App. D.C. 1923).

11 22 Op. Atty. Gen., 544, 545 (1899). 2 J. Story, "Commentaries on the Construction of the United States." Section 1328. p. 200 (4th ed. 1873): "The power of Congress over the public territory is clearly exclusive and universal ***" Cf. Osborne v. United States, 145, F. 2d 892, 896 (9th Cir. 1944).

12 Botany Worsted Mills v. United States, 278 U.S. 282, 289 (1929); T.I.M.E. v. United States, 359 U.S. 464, 471 (1959): "we find it impossible to impute to Congress an intention to give such a right to shippers under the Motor Carrier Act when the very sections which established that right in Part I [for railroads] were wholly omitted in the Motor Carrier Act."

131 Annals of Cong. 505 (2d ed. 1836) (print bearing running head "History of Congress") and see Alexander White, id. 517.

14 Swiss Nat. Ins. Co. v. Miller, 289 Fed. 570, 574, (App. D.C. 1923). Ginsberg & Son v. Popkin, 285 U.S. 204, 208 (1932): "General language of a statutory provision, although broad enough to include it. will not be held to apply to a matter specifically dealt with in another part of the same enactment." Buffum v. Chase Nat. Bank, 192 F. 2d 58. 61 (7th Cir. 1951). In this light, the fact, stressed by Hansell, that the Framers contemplated that a treaty could affect "territorial" rights, Hansel 5. is not decisive, for the treaty would yet be subject to the special Congress "power to dispose." There is no evidence in the records of the Convention that the Framers intended in any way to curtail that power. or to give the President a share in it. Were the matter less clear, we should yet "prefer a construction which leaves to each element of the statute a function in some way different from the others" to one which causes one section to overlap another. United States v. Dinerstein, 362 F. 2d 852, 855-856 (2d Cir. 1966).