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However, as Secretary of State Rogers pointed out in
testimony before the Senate Foreign Relations Committee, the
Japanese retained under the 1951 Treaty of Peace "residual sovereignty. Moreover, the transfer pursuant to that treaty
seems to have been authorized by the Japan-United States Friendship
Act of 1975 (22 U.S.C. 2901 (a) (2) ]
In 1897, Attorney General John W. Griggs issued an opinion
on the alienation by the President or Secretary of War of United
States property in Puerto Rico to a private person.
General said, "there is no legislation by Congress made for or
properly applicable to the public domain in Puerto Rico.
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 depart
ment of the government."
[22 Op. Att'y. Gen. 544, 545 (1899) ]
With respect to the Panama Canal zone itself, the 1942
Congressional proceedings involving an executive agreement transferring land and property in the Canal Zone to Panama are instructive.
The transfer was effected by executive agreement which was then
submitted to both houses for approval.
It was objected by some
Senators that it should have been done by treaty.
Chairman of the Senate Foreign Relations Committee, responded to
Those who are opposing the measure object because the
States in all its proper functions as a branch of the
In the House of Representatives, the Committee on Foreign
Affairs stated in its report:
Congressional approval of the Executive commitments
There is abundant authority that Congress' power under
Art. IV, Sec. 3, cl. 2, is "without limitations" in contexts other
than the present sort of treaty controversy.
Ed. 2d 1239, 1246]
Nor is there any sufficient reason for treating
that Congressional power as less extensive in the treaty context.
Art. IV, Sec. 3, cl. 2, represents a decision by the Constitutional Convention and the States to protect the property of the United States by ensuring that the disposition would be the prerogative of
the United States government and not of the individual states.
Moreover, the specific grant of that power only to Congress was
As the most broadly representative branch of
government, it is appropriate that Congress is the only body to
alienate from the American people that which is theirs.
power does not confer on the President and two-thirds of the Senate
a power to change the constitutional distribution of powers in any
Such power is not necessary to the orderly conduct of
And its recognition would undermine public
confidence in the representative character of the United States
It must be remembered that Senate ratification of a treaty
requires approval merely of "two-thirds of the Senators present."
Executive agreements, which are very similar in power to treaties,
(See United States v. Belmont, 301 U.S. 324 (1937); United States
v. Pink, 315 U.S. 203 (1942)) do not require any Congressional
consent at all.
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.
power in this area ought to be regarded as exclusive.
people ought to be deprived of their territory and property only
by action of that governmental body most responsive to public
That body is the entire Congress and most especially the
House of Representatives.
Senator ALLEN. Professor Berger is the leading authority on American constitutional law and is author of the widely acclaimed new book on the Constitution, “Government by Judiciary.”
Of course, Professor Berger has authored many works on the U.S. Constitution, and probably his best known book, “Executive Privilege,” will be recalled throughout history for its great impact on the constitutional questions presented during the Watergate controversy.
Professor Berger has appeared in the past before this committee and has always made an extremely valuable contribution to the work of the committee in understanding issues involving the Constitution and the doctrine of separation of powers.
So, the committee is indeed greatly honored by Professor Berger's appearance, and certainly the distinguished ranking minority member of the committee and the minority
staff of the committee are to be complimented for having made arrangements for the committee to receive Professor Berger's very valuable testimony.
Senator Hatch. We want to welcome you here, Professor Berger, not only because of your prestige as an eminent constitutional law scholar but also because of your great interest in upholding the principles of limited government-an interest which I am pleased to share with you.
In spite of all of the emotionalism surrounding the Panama Canal Treaties and I think there are arguments on both sides—the most important issue, in many respects, is the constitutional one which you confront in your written statement. I refer, of course, to the question of whether the President can extend his power by concurrent jurisdiction to cede property by treaty without the consent of both Houses of Congress.
I shall be very interested in your testimony today. I think it is crucial to this country. As I have gone around the country, I have asked people if they have heard of this constitutional issue regarding the Panama Canal. Hardly anybody has read of it or understands it or cares about it. Yet, it probably is one of the most crucial issues, not because of the Panama Canal itself, but because it involves the separation of powers doctrine of the U.S. Constitution.
More specifically, it involves the continuing problem of an overextension of executive power not contemplated by the Constitution, following in the wake of Watergate.
We are grateful for your coming.
Senator ALLEN. Professor Berger, the Senate is now in session. Ordinarily committees cannot meet during the session of the Senate except for the first 2 hours of the Senate's session.
However, your testimony is so important that we were able to get permission of the Senate so that the committee might meet to hear your testimony.
So we are under no time constraints whatsoever. You may feel completely at leisure as you give your testimony. We are not hampered by any restraints of that sort at all.
We look forward very much to your testimony.
TESTIMONY OF RAOUL BERGER, AUTHOR OF "EXECUTIVE PRIVI
LEGE” AND “GOVERNMENT BY JUDICIARY” Professor BERGER. Mr. Chairman and Senator Hatch, I appreciate your courtesy.
Permit me to say preliminarily that I am no longer a member of the Harvard Law School. I was from 1971 to 1976 the Charles Warren senior fellow in the American League of History. But after age 75 you cannot even serve as a janitor at Harvard Law School. I am now almost 77.
FOR PANAMA CANAL TREATY Second, 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 for precisely the reason that Senator Hatch mentioned because I have an overriding commitment to the Constitution.
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 Adviser, 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 overleap 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.”
You have asked me to comment particularly on the statements that were made by the representatives of the State Department and the Department of Justice; namely, Mr. Hansell and Mr. Erickson. I may say immediately that the Hansell-Erickson testimony did not serve to diminish my skepticism.
I should add that I am not here as an opinion witness. What I have attempted to do is this: I have taken time to study your record and the various statements, and independently to study the constitutional sources and the cases and make up my mind as to where the truth
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 (Dec. 2, 1971), hereafter cited as Erickson.
3 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 647 (1952), concurring opinion.