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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.

The Attorney

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.

Senator Connally,

Chairman of the Senate Foreign Relations Committee, responded to

these objections:

Those who are opposing the measure object because the
matter is brought before the Senate in the form of a
joint resolution. They say it should be in the form of
a treaty:
Mr. President, I am and have been and in the future
shall continue to be ardent in my maintenance of the
integrity and the rights of the Senate of the United

States in all its proper functions as a branch of the
Government; but the matter covered by the joint resolu-
tion has to be passed by the Congress sooner or later
in some form, for the simple reason that under the
Constitution of the United States, Congress alone can
vest title to property which belongs to the United
States. The Constitution itself confers on Congress
specific authority to transfer territory or lands be-
longing to the United States. So, if we had a formal
treaty before us and if it should be ratified, it still
would be necessary for the Congress to pass an act
vesting in the Republic of Panama the title to the parti-
cular tracts of land; because "the Congress" means both
bodies. The House of Representatives has a right to a
voice as to whether any transfer of real estate or other
property shall be made either under treaty or otherwise.
[88 Cong. Rec. 9267)

In the House of Representatives, the Committee on Foreign

Affairs stated in its report:

Congressional approval of the Executive commitments
to Panama is sought in the form of legislation because
there is involved (a) a disposition of property of the
United States and (b) an appropriation of funds, both
requiring an exercise of the legislative power, in-
dependently of the treaty-making power. (House Report
No. 78-271, p. 6]

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.

(Annotation, 496,

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

not accidental.

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.

The treaty

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

foreign relations.

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.

The American

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.

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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.


LEGE” AND “GOVERNMENT BY JUDICIARYProfessor 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

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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.

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