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.

5

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. 4 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).

8 "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." "

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." 13 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." "

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

9 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).

Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the * * * departments * * * 15

Only the treaty power is "expressed"; Geofroy does not call for express restraints-it suffices that they can be found in the Constitution. The "implied exclusion" is "found" in the Constitution by virtue of the express grant of disposal power to Congress under the rule of express mention, and of the fact that the general treaty power is limited by the special Congressional power of disposition. These principles are reflected in the Supreme Court's statement in Sioux Tribe of Indians v. United States: "Since the Constitution places the authority to dispose of public lands exclusively in Congress, the Executive's power to convey any interest in the lands must be traced to Congressional delegation of its authority."

To this the State Department responds that Sioux Tribe "did not deal with the relation between the treaty power and the Congressional power under Article IV, Section 3, cl. 2;" Hansell labeled it "dicta." 17 By this test the HansellErickson collection of dicta falls to the ground, for almost all were not uttered in the context of that relation.

The executive branch employs a double standard-what is dictum when the language is unfavorable to it becomes Holy Writ when the dictum reads in its favor. Erickson, for example, tells us that: "Jones against Meehan is cited as an example by reason of the quote and the language there, which it seems to me is of significance, irrespective of the particular facts involved." 18

Messrs. Erickson and Hansell can not have it both ways. In truth, dicta carry little weight when a particular issue has not been decided. Chief Justice Marshall dismissed his own dicta in Marbury v. Madison when they were pressed upon him in Cohens v. Virginia, 19 U.S. 264, 399 (1821), on the ground that dicta do not receive the careful consideration accorded to the question "actually before the court." The statements here quoted respecting "exclusivity” carry weight because they reflect traditional canons of construction. The foregoing considerations should suffice to dispose of a number of other Hansell-Erickson arguments for "concurrent jurisdiction," but I shall consider them for the sake of complete

ness.

To escape from the exclusivity of Congress' disposal power Mr. Erickson argues, "To begin with, Article IV, Section 3, clause 2, uses the same terminology, "Congress shall have power," as Article I, Section 8, which in our opinion, permits treaty provisions relating to such matters to be self-executing [i.e., without Congressional action], at least to the extent that the inherent character of the power or other constitutional provisions do not make the power exclusive to Congress."

Erickson's qualification is a concession that some Article I powers can not be concurrently exercised by the President. The Department of State Concedes that "treaties may [not] impose taxes." 20 Why is that power more "inherently" exclusive than such other Article I, Section 8 powers as the power to establish post offices, to provide and maintain a navy, to declare war, to coin money, etc., all of which manifestly can not be exercised by treaty. Erickson proves too much. Second, he urges, "Article IV, Section 3, clause 2, is included in a portion of the Constitution which deals with the distribution of authority between the Federal and State governments. It does not purport to allocate powers exercisable by Congress or pursuant to treaty." "

But Section 3 (2) unmistakably does "allocate powers exercisable by Congress": "The Congress shall have power to dispose of . . . property belonging to the United States." Hansell argues that the placement of the property article in clause 4 ... provides strong evidence that the property clause does not restrict the treaty power.' ." That the "placement of a power in one or another Article is without significance for its scope is readily demonstrable: (a) "Congress shall have power to declare the punishment of treason" is located in the

15 Hansell 4; 133 U.S. 258, 267 (1890), emphasis added. One might with equal force argue that no limitation on Congress' "power to dispose" is "expressed" in Article IV. 16 316 U.S. 317. 326 (1942). Turner v. American Baptist Missionary Union, 24 Fed. Cas. (No. 14, 251) 344, 346 (C. Ct. Mich. 1852): "Without a law the president is not authorized to sell the public lands * The [Indian] treaty, in fact appropriated the above tract of 160 acres for a particular purpose, but, to effectuate that purpose, an act of congress was passed."

17 Hansell 27, 22.

18 Erickson 105.

19 Td. 97.

20 Hansell 25.

21 Erickson 97.

Hansell 4-5, emphasis added.

99-592-787

Judiciary Article III; (b) Congress' powers to make "exceptions and regulations" respecting the Supreme Court's appellate jurisdiction is lodged in Article III, Section 2; (c) The provision that "Congress may determine the time of choosing the electors" is placed in the Executive Article II, Section 1(4). Does this authorize the President by treaty to declare the punishment of treason, to regulate the Court's appellate jurisdiction, or to interpose in the choice of electors? Whether located in Article I or Article IV, "Congress shall have power" means one and the same thing-the power resides in Congress, not in the President. It needs constantly to be borne in mind that the President has circumvented Senate participation in treaty-making by affixing the label “Executive Agreements" to treaties, without constitutional warrant," so that claims made on behalf of the Senate and the President can be turned to his own advantage.

Mr. Hansell also attaches significance to the close linkage between the Article IV "power to dispose" and "the power to make all needful rules and regulations" respecting the Territory or other property belonging to the United States, and cites Geofroy v. Riggs for the proposition that "the treaty power can be used to make rules and regulations governing the territory belonging to the United States, even in the District of Columbia."" Geofroy presented the question whether a citizen of France could take land in the District of Columbia by descent from a citizen of the United States. Local law withheld the right, but in keeping with national solicitude for protection of citizens abroad, a treaty provided for reciprocal rights of inheritance in such circumstances for citzens of both signatories. In consequence the treaty overrode the local provision; but this hardly stretches to the "making of rules and regulations" by treaty for the District of Columbia. Were this true, the President could by treaty take over the governance of the District of Columbia, in spite of the Article I, Section 8 (17) provision that "The Congress shall have power to exercise exclusive jurisdiction in all cases whatever over such district." Assume notwithstanding that the treaty power does indeed comprehend the "making of rules and regulations governing the . . . District of Columbia," does the "close" linkage with the "power to dispose" comprehend a disposition of the White House by treaty? Such arguments verge on absurdity.

Messrs. Hansell and Erickson have cited a string of cases in support of "The power to dispose of public land... by treaty." 25 Some, such as Holden v. Joy, 84 U.S. 211 (1872), and Jones v. Meehan, 175 U.S. 1 (1899), have frequently been cited in your hearings. Let me begin with Hansell's citation of Missouri v. Holland, 252 U.S. 416 (1920), for it quickly illustrates how far-fetched are the State Department's interpretations. Missouri v. Holland arose out of a State challenge to the treaty with Great Britain for the protection of migratory birds which annually traversed parts of the United States and of Canada. Justice Holmes, addressing the argument that the treaty infringed powers reserved to the States by the Tenth Amendment, stated, "Wild birds are not in the possession of any one, and possession is the beginning of ownership. The whole foundation of the State's rights is the presence within their jurisdiction of birds that yesterday had not arrived, tomorrow may be in another State, and in a week a thousand miles away."

Consequently the State could assert no "title" in migratory birds. By the same token, the United States could lay no claims to "ownership" of the birds, and Missouri v. Holland is therefore wholly irrelevant to the power by treaty to dispose of property belonging to the United States.

Holden v. Joy and Jones v. Meehan will repay close analysis because they involve Indian treaties which constitute one of the pillars of the argument, to quote Erickson, that "the United States can convey its title by way of self-executing treaty and that no implementing legislation is necessary.' "To begin with Jones, both Hansell and Erickson quote: "It is well settled that a good title to parts of the lands of an Indian tribe may be granted to individuals by a treaty between the United States and the tribe, without any act of Congress, or any patent from the Executive authority of the United States." 28 The treaty had "set apart from the tract hereby ceded [by the tribe] a reservation of six hundred and forty acres ***" for an individual Indian; and the issue was what kind of

23 Berger, supra n. 4 at 140-162.

24 Hanell 5.

25 Id.. Erickson 97.

26 252 U.S. at 434.

27 Erickson 97.

28 Hansell 6; Erickson 97.