Senator HATCH. That is right.

Professor BERGER. If authorized in the treaties, then it is up to the Senate.

Senator HATCH. Can we authorize all of these new payments without an appropriations bill which should originate in the House of Representatives?

Professor BERGER. Before you get to that, it is up to the Senate to ratify or not. You have the power in the Senate to stop it dead in its tracks if you do not like these particular provisions.

Senator HATCH. But until we can educate our brethren to the point where they realize they must do that, then is there not another major constitutional violation here wherein we have new appropriations without the appropriations bill originating in the House of Representatives as mandated by the Constitution?

Professor BERGER. Senator, it is my habit never to shoot from the hip.

Senator HATCH. We understand.

Professor BERGER. I can speak confidently about something to which I have addressed myself and have studied. It is one man's opinion and good only as far as the documentation is concerned.

But this is too involved and too difficult a question to answer hastily. It needs serious study. I, myself, would not find it possible to undertake it right now. I have other commitments.

It is certainly a question. I would agree.

Senator HATCH. You recognize it is a momentous question?

Professor BERGER. $345 million looks like an awful lot of money to

me.

Senator HATCH. Well, $9.8 billion is a lot of money also, and $2.25 billion is a lot and $10 million is a lot, too.

These are the principal two constitutional issues that are recognized issues by at least this committee which are issues involved in the Panama Canal treaty.

I am suggesting that until those two matters are cleared up that no thinking Senator should be voting to ratify these treaties.

Of course, we have No. three. I think there is a third argument that is very important. It may or may not involve constitutional implications. That is the myriad of ambiguities and misstatements and misinterpretations that presently exist in these treaties.

The fourth issue that might involve the Constitution is this. This issue happens to involve this one sheet of paper involving our "right" to intervene unilaterally to protect the neutrality of the Canal under the neutrality treaty and our "right" to have "expeditious transit". I refer to the document issued when the President and Mr. Torrejos got together and promulgated an unsigned joint communique. They say that this paper is going to resolve our difficulties in those two

areas.

Of course, they do not answer in discussing expeditious transit as to who will determine what is an emergency warranting expeditious transit nor do they answer many other issues.

I submit that there may be some constitutional implications there as well. I admit that this is a complex area.

But they are saying that this paper rises to the dignity of the treaty, or at least they are saying we should not worry because they orally agreed.

I submit that an oral agreement reduced to a position paper without signature and without the force and will of the executive of our country and of the other country, does not rise to the dignity of treaty.

These are some of the technical problems that I have with these treaties.

Professor BERGER. When you argue that, you can make a grave misstep also. You then say that this is merely an executive agreement. I am one of those who has inveighted against executive agreements. In the field of international treaties and foreign relations, I do not believe there is a Presidential power to enter into executive agreements, except the President making necessary agreements that carry out treaty provisions or statutory provisions.

I appreciate your concern here. You have done your homework. I have not. I am in no position to express an opinion. I am content to be held to what I studied and to express an opinion on that. Senator HATCH. I respect and appreciate that.

If you have any time, however, I would like you to consider these other questions.

Professor BERGER. In all honesty, Senator, I will not have. I am right now deluged.

Senator HATCH. You have performed a great service to the committee by addressing this one question, which is the paramount question. Professor BERGER. I have been before your predecessor, Senator Ervin, whose friendship I enjoyed. I testified on other constitutional issues. I think that the respect for and the preservation of the constitutional mandates is absolutely indispensable to the maintenance of our democracy. I do not want to have anybody overstep those boundaries even for noble purposes.

Senator HATCH. I agree with that. I respect you for it. I think that adds weight to your testimony, that is, your statement that you are in favor of these treaties and that you would like to see them properly approved.

I submit that you have looked at both sides here and you have looked at the documents. You have come up with something that overrides your desire to have the treaties ratified. That is, how can we solve the constitutional dilemma most effectively and still not abrogate the rights given by the Constitution?

Professor BERGER. A man of my years has long since learned that he is not infallible. In fact, one of the great anxieties which not only scholars but lawyers share is the apprehension that they may overlook something or misinterpret something.

Should the State Department and Attorney General point out Berger's errors in this particular area, I will consider them. I think it would be useful for me to have an opportunity to comment.

As I said at the outset, I attach no weight to my mere opinion. I feel no matter how much work a man has done in the field of constitutional law, with each fresh problem it is like coming up to bat in the world series. It does not make any difference if you batted 100 percent yesterdav or the last series, it is what you do at bat now.

I ask no more than respect for my documentation and my reasoning. I could be mistaken. If so, it would be the result of honest error and oversight.

You will find that I will immediately acknowledge those errors if they are pointed out. But at the same time I am accustomed to having wool pulled over the eyes. I know how to avoid it.

Senator HATCH. I think it would be fair to say, however, that this is the best your scholarship has been able to determine.

Professor BERGER. It represents a dispassionate honest effort arrived at after trying to read all the cases.

I have an appendix where I actually went to the length of studying every case that was cited for the Holden v. Joy dictum. I wanted to find out if it had any footing, never mind that it was a dictum.

If I misread the cases, and if the Department of State and the Attorney General want an opportunity to show that I have, then that is OK. Im I am wrong, I will confess error, and if they are wrong, I would like to point it out.

Senator HATCH. I would like to borrow your metaphor. I would suggest that you hit a homerun today. You have done this committeeand I think the country-a great service in helping us to understand this problem better. I understand it better now than at any time since the beginning of our deliberations, although inherently I felt the same way about these cases that you do.

I am deeply grateful to meet you and to hear your testimony.
Thank you very much.

Senator ALLEN. Professor Berger, we are deeply grateful to you for your fine testimony for which we commend you. We are highly honored by your appearance before our committee to give us the benefit of your views.

Äs a recognized authority on the Constitution, is it your considered opinion that the power given to Congress under article IV, section 3, paragraph 2 of the Constitution to dispose of territory and other property of the United States is an exclusive right, exclusive power in Congress?

Professor BERGER. 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 for 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 by the various witnesses. It is an independent study.

My study of the cases has led me to conclude that the power is indeed exclusive.

If I am wrong, I would like to have it pointed out to me where I am wrong.

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 judgment, that vitiates that view.

Senator ALLEN. Where the power is given to the Congress and an effort is made to establish concurrent jurisdiction, such justification of concurrent jurisdiction should be by clear and overwhelming proof; should it not?

Professor BERGER. I would exercise the word "overwhelming." I am satisfied with “clear.”

I would say that certainly, in the teeth of this express power, there should be clear proof and, I would remind you Hansell or Erickson, I forget which, admitted that the question is not free from doubt. Í

consider that a mistake-to cut down explicit language where there are doubts is a left-footed approach to constitutional interpretation.

Senator ALLEN. You call attention to the fact that Mr. Hansell and Mr. Erickson rely a great deal on dicta in their testimony whereas you are able to cite direct holdings, rulings of the Supreme Court. Is that not true?

Professor BERGER. No. I think both sides have cited dicta, insofar as the precise question of the relation of article IV to the treaty power has never been adjudicated.

You have dicta about the treaty power which are far afield, and you have utterances that the power is exclusive but never in the framework of the treaty power.

I do not claim that the statements for exclusivity are any better than the dicta for concurrent jurisdiction.

What I do say is this. The exclusivity statements win support from the face of the Constitution by virtue of two cardinal rules of construction, the rule of express mention, and the rule that the special governs the general. Remember when we do not have legislative history, these maxims, which are centuries old, help us to interpret.

That is why I think the case for the exclusivity statements is better. I do not think that Hansell and Erickson can bolster their dicta. I think I have been able to bolster the dicta favoring exclusivity.

Senator ALLEN. You cite Wisconsin Central Railroad Company v. Price County. You quote from the Supreme Court opinion that article IV implies an exclusion of all other authority over property which could interfere with this power vested in Congress or obstruct its excise.

Professor BERGER. That is true. That reflects the arguments based on maxims of construction. The mention of Congress alone implies that everybody else was excluded. The Court does not cite the maxim, but that, in effect, is what the statement relies on.

But it remains, nevertheless, as far as the treaty powers are concerned, a dictum. It was uttered in a nontreaty framework, and although it was not dictum as far as the particular holding was concerned, as far as the treaty power is concerned, we have to regard it as a dictum.

Mr. CHAIRMAN. May I interpolate: at the outset of my career I asked a sage, old practitioner what made a fine lawyer. He said, "Lots of scar tissue."

I hope I am a good lawyer by virtue of the fact that I have lots of scar tissue. [Laughter.]

Professor BERGER. So, I would say let us not get into a battle about "Our dicta are better than yours." I would prefer to take the opposite view to what Mr. Erickson and Mr. Hansell tacitly took. When they cite dicta, it becomes Holy Writ. When statements are cited for "exclusivity," then that becomes pure dicta. I do not want to get into their camp. Dicta for me are dicta. If dicta are going to have weight, it is because they reflect cardinal principles of constitutional construction. Senator ALLEN. I notice you call attention to Mr. Justice Jackson who brushed aside testimony of representatives of the executive department even in a particular case where it had been his own statement.

Professor BERGER. He brushed aside his own statements as Attorney General. He said he was then just an attorney for a client.

REPRESENTING THE PRESIDENT

Senator ALLEN. So you think we might well then be skeptical of Mr. Hansell's testimony and Mr. Erickson's testimony and even that of the Attorney General inasmuch as they are representing their client who is the President, whereas you have no interest in the matter other than as a student of the Constitution?

Professor BERGER. I may refer you to my book on "Executive Privilege" where I examine Attorney General Rogers' opinion to the President for uncontrolled discretion to withhold information from the Congress. That examination has been called by people like former Solicitor General Archibald Cox a devastating critique.

So, I have learned from experience to take Attorneys General opinions involved in these conflicts between Presidents and Congress with what Samuel Goldwyn called a bushel of salts.

Senator ALLEN. One whole chapter of your book, “Executive Privilege," is devoted entirely to one of the issues of concern of the committee.

Would you have any objection if we reprinted that in the record; that is, that chapter of your book? 1

Professor BERGER. I would be pleased. I think it could be useful to you as you grapple with the problems of foreign relations and with the problems of executive agreements. I devoted the better part of a whole year to researching that question and minutely going over it every inch of the way.

I want to emphasize that I do not claim infallibility, that I try honestly to look at the case for views that are opposed to the view that I arrive at and to examine them. I do not brush them under a rug. You will find that to be true of that chapter. I think it might be useful, especially on the executive agreements.

Senator ALLEN. I think it will also. You would have then no objection to our using other portions of your book as an addendum to your testimony?

Professor BERGER. That will be fine.

Senator ALLEN. Very well. Without objection, so ordered.

EXECUTIVE AGREEMENTS

Professor Berger, you are recognized, as I have stated, as a leading authority on questions involving executive privilege and the related issues associated with the so-called executive agreements.

The committee has learned from the Department of State that it is proposed in one of the executive agreements to lend or grant to the Republic of Panama $345 million without the advice or consent of the Senate. For that matter, it is without appropriation by the Congress. This executive agreement does not reference either of the Panama Canal Treaties, and, therefore, purports to be operative and effective on its own. What would be your view of this or similar executive agreements?

Professor BERGER. In the chapter which we spoke about-I believe it is chapter 5-I treated executive agreements at great length.

1 See p. 375 for ch. 5 of Professor Berger's book "Executive Privilege: A Constitutional Myth.'