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The Pink case had no occasion to rule that a presidential agreement could be made against the wishes of Congress; and in fact Justice Douglas said that the executive policy had been “tacitly" recognized by congressional appointment of commissioners to determine American claims against the Soviet fund.221 The dissent of Chief Justice Stone, in which Justice Roberts joined, is incontrovertible: "we are referred to no authority which would sustain such an exercise of power as is said to have been exerted here by mere assignment unratified by the Senate."222

224

We need only recall Davie's references to the prevalent distrust of executive power,223 to the jealous insistence by the small states on participation in treatymaking on an equal basis in the Senate,2 to the fears that surfaced in the Ratification conventions-despite Senate participation-that the power to override state laws might lead to oppression,225 in order to conclude that without Senate participation the treaty power would not have found acceptance. To allow an executive agreement to override state law or policy on the ground that it represents "a modest implied power" is to ignore the Founders' plain intention to withhold that power from the President.

This is confirmed by Article VI, which makes only "Laws" and "Treaties" the "supreme law of the land" binding upon the states.226 An executive agreement is not a "treaty" because it lacks the "advice and consent" of the Senate; it is not a "law" because it was not "made" by the Congress.227 Justice Sutherland all too lightly leapt over these obstacles; while the supremacy of treaties, he said,

Senate is established,” ibid. 208, citing Monaco and Curtiss-Wright; emphasis added. Thus are mere dicta transmuted into "established" law.

221. Ibid. 227-228.

222. Ibid. 249. McDougal & Lans, 310, also rely on Watts v. United States, 1 Wash. Terr. 288, 294 (1870), for the proposition that "an executive agreement between Great Britain and the United States . . with regard to jurisdiction over San Juan Island, was deemed to modify the Organic Law of the territory as enacted by Congress." Whether one can extract such a holding from the three separate opinions in the case is at least debatable. Whatever the effect of the opinion of a territorial court, it may be doubted that the Supreme Court would allow a presidential agreement to override an Act of Congress. See infra, text accompanying n. 232.

223. See supra, text accompanying n. 152. 224. See supra, text accompanying n. 169. 225. See supra, text accompanying n. 164.

226. For discussion of the "binding" phrase, see Berger, Congress v. Court 236-244. 227. Discussing Art. VI, James Iredell stated that "when the Congress passes a law consistent with the Constitution, it is to be binding"; 4 Elliot 179. At this juncture men thought that judges ascertained the law; they did not "make it.”

is established by the express language of cl. 2, Art. VI, of the Constitution, the same rule would result in the case of all international compacts and agreements from the very fact that complete power over international affairs is in the national government and is not and cannot be subject to any curtailment or interference on the part of the several states.2

228

Be it assumed that plenary power over "international affairs" resides in the “national government," and it by no means follows that it was vested in the President.229 Then too, actuated by profound distrust of centralized federal power and deep-seated attachment to local state sovereignty,2 230 the people consented to be "bound" only by "laws" and "treaties," and, as we have seen, accepted "treaties" only when participation of the Senate was assured.231 Sutherland would repudiate these assurances in reliance on his impalpable theory of supraconstitutional federal “sovereignty" and "inherent" powers. But the Founders did not fashion a government of limited powers, they did not circumscribe both President and Congress by an enumeration of powers, they did not then go on to reserve all "powers not delegated . . . by the Constitution" only to turn over to the President an unbounded power to set these limitations at naught.

At best, the not so "modest implied power" of the President to enter into such agreements with the tacit consent of Congress amounts to no more than a concurrent power that Congress can curtail by statute, as Justice Jackson reminded us in the Youngstown case.232 Were the issue presented anew by a congressional challenge, embodied in a statute, to presidential entry into executive agreements without its consent, the cases would be far from conclusive.233 Even Curtiss-Wright did not intimate, said Justice

228. United States v. Belmont, 301 U.S. 324, 331 (1937). To the extent that his statement turns on an assumption of supraconstitutional, “inherent" powers, of "sovereignty," it was earlier shown to be untenable; supra, Ch. 4, text accompanying nn. 211-235.

229. Supra, Ch. 4, text accompanying n. 215.

230. For distrust of centralized power, see Berger, Congress v. Court 8-9, 31-34; for attachment to state sovereignty, ibid. 260-263, 224.

231. Supra, text accompanying nn. 148-156.

232. 343 U.S. at 637-639, concurring. Given concurrent powers, Chief Justice Marshall held in an early war-powers case, a congressional statute must prevail; Little v. Barreme, 6 U.S. (2 Cranch) 170, 177-178 (1804).

233. Professor Henkin comments that the cases exhibit "the vagaries of judicial incursions [into foreign affairs] that are infrequent and develop no confident mastery"; Henkin 64. At another point he states: "To some extent judicial difference in relation to foreign affairs has been the product of conceptualisms about sacrosanct 'sovereignty,' of unexamined assumptions reflected in incantations about 'war and peace,' of set

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Jackson in the Youngstown case, that the President “might act contrary to an act of Congress."234

When Rufus King, who participated in shaping much of the foregoing history-from the Continental Congress' preclusion of secrecy, through framing presidential participation in treatymaking, to selection of John Jay as plenipotentiary to Britain and programming his mission-stated that the Senate may "at any time call for full and exact information respecting the foreign affairs,' "235 he knew at first hand whereof he spoke. The pattern had been set by the Hanoverian period, in which the "participation of parliament in foreign affairs and even its supervision of them was... fully recognized."236 The constitutional treaty-power clause, Corwin truly said, "evidently assumed that the President and the Senate will be associated throughout the entire process of making a treaty,"237 the reason, in Hamilton's words, being that "the vast importance of the trust . plead [s] strongly for the participation . . . of the legislative body in the office of making them." "Joint possession" of the treaty power, he continued, affords "greater prospect of security, than the separate possession of it by either" Senate or President. 238 There can be no meaningful "participation" in the exercise of a "joint" power by a partner who is kept in total ignorance by the other. Presidential concealment of foreign affairs from the Senate finds no excuse in constitutional history; instead it thwarts the manifest intention of the Founders.

.

habits of thought about international relations, about how they are conducted, about the 'proper' role of courts in regard to them"; ibid. 272.

Neither Belmont nor Pink presented a conflict between Congress and the President. Were Congress to assert its constitutional powers, by statute or otherwise, the judicial function of policing constitutional limitations should impose the duty of adjudicating the conflicting boundary claims. See infra, Ch. 11.

234. 343 U.S. 635–636 n.

235. Supra, text accompanying n. 110.

236. Supra, text accompanying n. 40.

237. Supra, text accompanying n. 31; and see supra n. 63.

238. Supra, text accompanying n. 56. Henkin, 84, concludes with characteristic understatement that "the theoretical arguments for Congressional primacy [in the field of foreign relations], or at least concurrent authority, are not less persuasive than those for the President." And, he states: "The Executive must learn to conduct foreign relations with less secrecy and greater responsibility. Congress must have a timely, honest, meaningful role, and the flow of information to fulfill it"; ibid. 279.

PANAMA CANAL TREATY

(DISPOSITION OF UNITED STATES TERRITORY)

TUESDAY, NOVEMBER 15, 1977

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

SUBCOMMITTEE ON SEPARATION OF POWERS,

Washington, D.C.

The subcommittee met, pursuant to notice, at 10:05 a.m., in room 1114, Dirksen Senate Office Building, Senator James B. Allen of Alabama (chairman of the subcommittee), presiding.

Present: Senator Hatch of Utah.

Staff present: Quentin Crommelin, Jr., chief counsel and staff director, and Melinda Campbell, chief clerk.

Senator ALLEN. The subcommittee will please come to order.

OPENING STATEMENT OF CHAIRMAN ALLEN

The Subcommittee on Separation of Powers is convened this morning to continue the subcommittee's investigation of constitutional issues arising out of the proposed Panama Canal treaties. I am certain that most of those present this morning are aware of the two central constitutional issues under investigation; however, perhaps I should again state the propositions which are the focus of the committee's inquiry.

First, article IV, section III, clause 2 of the Constitution of the United States provides that Congress-that is, both Houses of Congress "shall have power dispose of*** the territory or other property belonging to the United States." Many witnesses have testified before the committee that the power given to Congress in that clause is exclusive and therefore that the executive branch is prohibited from entering into a treaty disposing of U.S. territory or property except with express congressional authorization by statute.

Prof. Raoul Berger, of the Harvard Law School, and Prof. Charles Rice, of the Notre Dame Law School, both eminent scholars of the Constitution, have testified that the power of Congress to dispose of territory or property is an exclusive power and that a treaty disposing of property concluded without congressional authorization would be void insofar as it purported to transfer territory or property without congressional assent.

Second, members of the committee are also deeply concerned that the executive department has made certain financial commitments to the Government of Panama pursuant to executive agreement not included in the provisions of the canal treaties nor in the provisions of the other executive agreements which accompany the treaties. These

separately consummated financial deals were apparently negotiated concurrently with the treaty provisions during the treaty negotiations, and certainly there is therefore reason to be concerned that these arrangements are properly a part of the proposed treaties or, at a minimum, a part of the executive agreements accompanying the proposed treaties. The committee will consider whether these extrinsic financial arrangements for some $345 million violate the doctrine of separation of powers much as does the contemplated circumvention of the Congress on the property disposal issue-because these extrinsic financial deals deny to the Senate the right to give its advice and consent to all aspects of the new proposed treaty arrangements with Panama.

A related problem which has also been subject to investigation in the committee is the manner in which funds would be transferred to the Republic of Panama using a new Panama Canal Commission for the purpose of providing promised money to Panama without the necessity of seeking an appropriation from the Congress. The members of the committee, I am sure, are concerned that apparently the executive branch intends to transfer the assets of the present Panama Canal Company to a new Panama Canal Commission which would eventually be turned over to Panama but that the executive branch does not intend to transfer some $319 million in liabilities to the new Commission. That is the present debt of the Panama Canal Company to the U.S. Treasury.

So the committee is greatly interested in examining in depth each of these issues, and we feel that substantial progress has been made in understanding the facts involved. Today we expect to make even greater progress in our inquiry since today we will have the benefit of hearing the testimony of Secretary Richard Cooper, Under Secretary for Economic Development. Secretary Cooper took part in some of the negotiations involved in concluding these financial arrangements and has intimate knowledge of the process by which these commitments were made. Secretary Cooper is accompanied by Hon. Herbert Hansell, legal adviser to the Secretary of State, who has previously appeared before the committee to give the committee the benefit of his expertise on certain of the legal issues now subject to inquiry.

I might say that I am very pleased that Secretary Cooper has made arrangements to appear before the committee today because I know that his schedule is very demanding, as is that of Mr. Hansell. I do feel that the administration might have avoided some of the pitfalls in the negotiation of these treaties by advising with the Senate during the negotiating process because I believe that some of the many defects which have arisen in connection with these proposed treaties might thereby have been precluded. But now that the treaties have been signed, I am gratified that the administration is developing a more open attitude in explaining the provisions adopted. Certainly Secretary Cooper's testimony and that of Mr. Hansell will be of assistance to the committee and to the Senate in furthering the process of understanding these proposed treaties.

Secretary Cooper, we look forward to hearing your testimony. You may proceed in such fashion as you deem appropriate.