Mr. NONNENMACHER. I have reference to all of the payments to Panama, just lumping them together, that may prove not to be covered by tolls as promised.

Senator ALLEN. It is possible that the House would have a right to consider some of the implementing legislation, but on the $345 million $200 million of that is from the Export-Import Bank, $75 million from AID, and $50 million from the military supplies provision that would probably be the only provision that we would-the House would have an opportunity to vote on. That would be my judgment.

Mr. NONNENMACHER. If at any time it should prove necessary for appropriations, however, to make up for losses, should the joint control prove inadequate, and should there be delays and the like, which would prevent efficient operation, would not at that time the Congress, as a whole, be in a position to refuse to make such appropriations?

Senator ALLEN. Well, the whole arrangement has been one of seeking to avoid the necessity of congressional action, and I am satisfied that the administration would continue with that policy.

The Commission-the Panama Canal Commission-the new Commission could impose such rates as they thought advisable on the tonnage. That is where the $2,265 million is coming from, from increased tolls, and I assume that they could increase those tolls without congressional assent.

Mr. NONNENMACHER. Thank you very much, Senator.

Thank you, Mr. Chairman.

The CHAIRMAN. Thank you, Senator.

Our next witness is our colleague from Idaho, George Hansen, who is taking an articulate role on the constitutional issue. Congressman Hansen.

STATEMENT OF HON. GEORGE HANSEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF IDAHO

Mr. HANSEN. Mr. Chairman, fellow colleagues, my remarks today concern the proposed Panama Canal Treaties, and the chairman is deeply appreciated for his leadership in protecting the prerogatives of the House, as outlined in article IV, section 3, clause 2 of the U.S. Constitution, which states that only the Congress of the United States has the authority to dispose of American property.

Mr. Chairman, I would like to do a bit of paraphrasing to my testimony, if it would be proper to you.

The CHAIRMAN. Without objection the entire statement will be in the record at this point, and if you would proceed.

[The following statement was received for the record, along with the text of one of the resolutions introduced by the witness on the issue of transfer of U.S. property and territory:]

STATEMENT OF HON. GEORGE HANSEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF IDAHO

Mr. Chairman, fellow colleagues, my remarks today concern the proposed Panama Canal Treaties. Article IV, Section 3, Clause 2 of the U.S. Constitution states that only the Congress of the United States has the authority to

dispose of American property. Soon you will hear representatives of the Departments of State and Justice argue that the President also has the Constitutional authority to dispose of American property. They will argue that the President's power is concurrent with that of the Congress under Article II, Section 2, Clause 2 of the Constitution.

These two clauses of the Constitution are on a collision course over the Panama Canal Treaty. Herbert Hansell, Legal Advisor to the Department of State, testified before the Senate Subcommittee on Separation of Powers that it was the position of the State Department that the President had power to dispose of territory belonging to the United States without an Act of Congress. This represents a complete turnabout by State in less than twenty years. In 1957, a representative of State testifying on the 1955 Panama Treaty, acknowledged that legislation was required to implement expropriation of U.S. Territory under a Treaty.

Hansell based his current claim of Presidential power on four arguments: 1. The language of the Constitution itself;

2. The drafting history of the Constitution in general and the Treaty Clause in particular;

3. Judicial precedents; and

4. Prior treaty practice particularly with regard to Panama and the Canal. Mr. Chairman, I must, however, point out that such arguments are incorrect and without historical precedent. It is extremely important to note that in each and every instance concerning the Panama Canal Zone throughout our history, there was always an Act of Congress for all land acquisitions and disposals in the Canal Zone. Specifically, I would like the Committee to note that the Spooner Act of 1904 arranged for payments to Columbia and the French Canal Company. Later in the year another Congressional Act arranged for a payment to the new Republic of Panama.

In 1920, Congress authorized the Panama Railroad Company to "sell, transfer, and convey" certain tracts of land in Cristobal, Canal Zone, "to any other person or persons or association of persons."

As called for in a 1942 executive agreement with Panama, Congress authorized the transfer of certain U.S. properties in the cities of Colon and Panama to the Republic of Panama. The resolution was approved May 3, 1943.

I pause here to point out two key factors which I think are significant and bear special note. It is clear that the executive agreement had no effect without the Act of Congress. Our situation today is no different.

Finally, in 1957, the Senate and House authorized the transfer of U.S.owned property to the Republic of Panama as stipulated in the Treaty of Mutual Understanding and Cooperation signed in January, 1955. More specifically, the House authorized the transfer of property as called for by Article V. Herbert Hansell's theory that presidential power is concurrent with congressional power, except for taxation and, perhaps, appropriation, is decidedly novel. Intrinsic evidence of its novelty is that Hansell offers not one single example of the prior exercise of these broad "concurrent powers." In the entire Constitution, exclusive power is mentioned only in connection with the power to impeach. The breadth of such claimed concurrent powers is virtually limitless and, if taken seriously, makes a mockery of the very document the President is sworn to uphold.

In fact, respected Constitutional writers such as Willoughby and Corwin seriously doubt that a Treaty has even superseded or repealed an inconsistent .statute of the United States.

As to the specific power to cede Territory of the United States by Treaty alone, the record is even clearer; State clearly perceives that the cession of the Panama Canal Zone would be a cession of Territory of the United States. It can be undeniably stated as I have just pointed out that the simple transfer of United States Territory has never occurred without Congressional enabling legislation.

In discussing Mr. Hansell's treaty arguments a distinction must first be made between passing title and expropriation of U.S. Territory to a foreign power. The State Department arguments concern only the expropriation of property.

In the border settlement treaties with Great Britain, in each instance the issue settled was Territory disputed by the powers; no clear sovereignty was apparent. Hansell himself makes the point when he describes the 1819 Treaty

with Spain as "ceding lands claimed by the United States on the Spanish side of the Boundary (west of the Mississippi)." (emphasis added) State's reliance upon the Mexican Treaties of 1933 and 1970 in support of presidential power to expropriate Territory is nearly pathetic. The Rio Grande is the natural boundary between Mexico and the United States. Over the years it has changed course slightly, isolating certain Mexican Territory on the U.S. side of the river. The mentioned Treaties merely acknowledge the legal boundary and recognize as Mexican, Territory over which the U.S. had never made a claim of sovereignty as it had always been Mexican before the shift of the river. Finally, the Senate is asked to examine the cession of the Ryukus and Daitos in 1971. These were Japanese islands over which the United States acquired dominion as a result of the Second World War. Perhaps all that need be said of the precedent allegedly established here is said by Hansell himself, “The transfers were made without implementing legislation apparently in reliance on the treaties or general statutory authority to dispose of foreign excess property." (emphasis added)

Before passing on to the precedents of the Canal Treaties themselves, it is necessary to note that the record, raised by State itself, clearly demonstrates that U.S. Territory has not been expropriated without Congressional enactment. Perhaps a case can be made from the same record, that U.S. Territory has never been expropriated under any circumstances.

In the British Treaties settling parts of our northern border, it could not fairly be said that there had been an absolute bountary. Even in that negotiable situation, Great Britain paid indemnity and the cession depended as a condition precedent upon approval by the legislatures of the States involved. The border settlements with Spain and Mexico were of the same general nature. What was settled in each case was a disputed boundary. In none of the instances, used by State to support its theory of "concurrent powers," an expropriation of undisputed U.S. sovereign Territory involved. In the Indian Treaty cases, there is not even a pretense of expropriation of sovereign Territory. Almost all of the cases are plain title cases which have no bearing on the presidential claim of "concurrent powers." The dicta in these cases often appear to strongly support such a position when, in fact, they merely repeat the proposition that treaty power is very broad with, or without, the concommitant observation that such treaty provisions often require Congressional implementation.

was

The State Department admits that property transfers have been made by Executive Agreement implemented by a Joint Resolution of the Congress; by Treaty specifically calling for legislative implementation; and claims at least one instance of transfer by Treaty alone. However, Mr. Hansell has conveniently forgotten to specify which transfer by Treaty alone he is referring to; in fact, there is no precedent concerning the Panama Canal Zone where any property has been acquired or disposed of without Congressional action.

The latest Canal Treaty specifically requires that cession of Canal Zone land requires legislation. In hearings on that Treaty, the State Department recognized that all territory covered in the Treaty was subject to the legislative proviso. With the exception of minor border corrections between the Zone and Panama, no transfer of Territory, in either direction, has ever taken place without legislation being adopted in the Congress.

The pertinent question is why, at this late date with all precedents against disposition of territory by treaty alone, the Executive is attempting to circumvent the constitutional role of the Congress of those provisions requiring enabling legislation. What motivates the State Department to embarrass isself by reversing the position it took twenty years ago on the same subject matter? Scholars, Senators, Representatives and laymen may argue for changing the method by which the U.S. may cede territory and there are bound to be controversies over various facets of the proposed treaty, but it appears improvident to add to the heat of the ratification argument an attempt to broaden the scope of Executive power. Mr. Chairman, I might add that such an attempt to broaden the scope of Executive power will be at the expense of the prerogatives of the Congress and the people of the United States. The concurrent powers theory purported by the State Department is a novelty. Apart from the obvious fact that it is disconsonant with the "checks and balances" theory underlying the entire federal structure, prior testimony has not offered a single example of exercise of "concurrent power." Constitu

tional authorities doubt that a Treaty could repeal an existing federal statute. No such cession of uncontested U.S. sovereign Territory has ever occurred. There is a clear distinction between passing title to real estate and passing sovereignty of national Territory. The State Department relies chiefly for support of its position on Indian Treaties which deal principally with title and not sovereignty. Their other citations mainly involve boundary corrections and settlements of disputed Territory.

A closer look at the treaties in question shows beyond a shadow of a doubt that Administration arguments concerning the "concurrent powers" theory are invalid. For example:

(1) Northeast and Northwest boundary treaties with Great Britain did not involve undisputed U.S. Territory and Settlements were favorable to the U.S. Also, Northeast treaties required assent of affected States as indemnity to them for any Territory lost.

(2) 1819 Treaty with Spain. U.S. received substantially all of Florida in exchange for relinquishing its claim to disputed Territory west of the Mississippi.

(3) Border Treaties with Mexico. Land "ceded" to Mexico was always Mexican. U.S. never claimed sovereignty. Natural change in river course was sole basis for adjustment of legal border.

(4) 1971 Treaty with Japan. Returned Ryukus and Daitos islands acquired during WW II. State Department witness admitted that return was likely pursuant to general statutory authority regarding the disposition of excess foreign property. U.S. never claimed sovereignty, treated islands more as "trust" Territories.

Mr. Chairman, I cannot fail to stress again that among the various Treaties concerning the Panama Canal there is no precedent for expropriation of U.S. Territory without Congressional action. Testifying in the 1955 Treaty, State acknowledged that legislation was required to effectuate Territorial transfers contemplated by Treaty. Only minor border adjustments have ever been effectuated absent legislation.

Why is the claim of "concurrent power" made at this time? In view of the tangled problems growing from the terms of the proposed Treaty and the dispute over the handling of the negotiations, the only specific reason for the present attempt to expand Executive power appears to be a disinclination to subject the Treaty to the scrutiny that hearing over implementing legislation would require.

The Administration's claims have no substance or merit and the following four points should be kept in mind:

(1) Prior treaty practice does not support the theory of "concurrent power". (2) State's interpretation of the Constitution would leave Congress with only impeachment and taxation as exclusive powers.

(3) Precedents in Panama Treaties totally oppose self-executing expropriation of U.S. territory.

(4) There is not a single judicial precedent supporting divestiture of U.S. territorial sovereignty without an Act of Congress.

Finally, Mr. Chairman, I would like to point out that 160 of our colleagues representing 44 states have joined me in co-sponsoring legislation (H.Con. Res. #347) which would uphold the Constitutional powers of the Congress and allow the House to vote on the property question under Article IV of the Constitution.

My resolution calls for one thing-a chance for the House to vote on the Panama matter. This is a constitutional issue and not one of partisans politics. It is our duty as the elected representatives of the people to assure that the voice of the House is heard. The constitution calls for it-now we must assert ourselves and demand it. Our stand must be perfectly clear to the President and all of America-we will not abide by back-door loans and grants to Panama made without our consent and outside the authorization and appropriations process of the Congress.

All of us in Congress will and should be held accountable at the polls next year if we fail to act now and allow the President to usurp our constitutional authority over this matter.

I sincerely feel that it is in the nation's best interest that we assert our constitutional authority and bring this question before the House as well as the Senate. In this effort I have strong bipartisan support both from key committee chairmen and from minority Leaders in the House.

The issue is a constitutional one but certainly any additional scrutiny of the Panama issue can only be in the best interests of the American public.

I should also point out that the testimony of Dr. Raoul Berger, a retired Harvard University law professor and noted authority on the Constitution,. before the Senate Subcommittee on Separation of Powers has unequivocally sustained the principle of my resolution, that the House as well as the Senate must consider the Panama issue.

This legislation rests in the Panama Canal Subcommittee of this Committee: where I would hope it will receive favorable and expeditious action.

Mr. Chairman, in closing, I wish to thank you and this committee for your time and consideration and urge your continued efforts to protect the prerogatives of the House of Representatives as outlined in the Constitution of the United States.

[H. Con. Res. 348, 95th Cong., 1st Sess.]

CONCURRENT RESOLUTION

Resolved by the House of Representatives (the Senate concurring), That it is the sense of the Congress of the United States that any right to, title to, or interest in the property of the United States Government agencies in the Panama Canal Zone or any real property and improvements thereon. located in the zone should not be conveyed, relinquished, or otherwise disposed of to any foreign government without specific authorization of such conveyance, relinquishment, or other disposition by an Act of Congress.

Mr. HANSEN. Thank you, Mr. Chairman.

Well, soon you will hear representatives of the Departments of State and Justice argue that the President has the constitutional authority to dispose of American property. They will argue that the President's power is concurrent with that of the Congress underarticle II, section 2, clause 2 of the Constitution.

These two clauses of the Constitution are on a collison course over the Panama Canal Treaty. Herbert Hansell, Legal Advisor tothe Department of State, testified before the Senate Subcommittee on Separation of Powers that it was the position of the State Department that the President had power to dispose of territory belonging to the United States without an act of Congress. This represents a complete turnabout by the State Department in less. than 20 years.

In 1957, a representative of State testifying on the 1955 Panama Treaty, acknowledged that legislation was required to implement expropriation of U.S. territory under a treaty.

Hansell based his current claim of presidential power on fourarguments:

One: The language of the Constitution itself;

Two: The drafting history of the Constitution in general and the treaty clause in particular;

Three: Judicial precedents; and

Four: Prior treaty practice particularly with regard to Panama. and the canal.

Mr. Chairman, I must, however, point out that such arguments. are incorrect and without historical precedent, and I hope they will not be repeating them again.

It is extremely important to note that in each and every instance concerning the Panama Canal Zone throughout our history, there was always an act of Congress for all land acquisitions and disposals. in the Canal Zone. I would like the committee to note that the Spooner