The general terms would certainly have to be roughed out by Congress. How far it would have to go into detail, however, is uncertain. I believe there is a free area of delegation of authority within general policies or principles.

Senator ALLEN. It is your contention that the treaty should not make any provisions for the disposition of property inasmuch as the disposition of property is not within the treaty making power of the Executive.

Mr. LEONARD. I do not know what else the treaty contains except the delivery of the Zone and jurisdiction to the Republic of Panama. There may be many subjects in it which are properly treaty subjects. It may therefore be properly called a treaty. It may deal with the actual relationships between Panama and the United States. In those areas no one could possibly criticize them. This is the authority of the Executive.

Senator ALLEN. Even though these provisions are in a treaty, you would feel that if both Houses of Congress approved this disposition of property in the treaty that such subsequent ratification by Congress would make the treaty binding and in full force and effect insofar as it purported to effect a disposal of property.

Mr. LEONARD. Well, I still say that it would not be a treaty, but the practical difference would not be of any concern to the courts.

Senator ALLEN. It would be an instrument, though, that in your judgment would accomplish the aims set out by whatever name it was called.

Mr. LEONARD. Quite correct. I think that is the way it would be viewed.

Senator ALLEN. The Constitution, of course, requires a two-thirds vote in the Senate for approval of a treaty.

Mr. LEONARD. This is correct.

Senator ALLEN. Would we have, as you would visualize it, a vote in the Senate requiring a two-thirds vote for giving this advice and consent in the treaty, and then in addition to that a statute requiring a majority vote in the House and a majority vote in the Senate?

Mr. LEONARD. Well, there is a certain amount of duplication involved in that, Mr. Chairman. The power of the Congress is essentially here only over the disposition of the Canal Zone, the nature of the jurisdiction in the Canal Zone, and the laws applicable to the citizens. If you had a rather hybrid instrument which contained certain matters which are properly under the treaty power combined with matters which are properly in Congress' authorization, then I would say that a two-thirds Senate vote followed by legislation covering the same subject and approving this, both of which were passed, would in the assemblage be quite valid.

Senator ALLEN. Therefore, even though the Constitution gives the exclusive power, you feel, to the Congress to dispose of property of the United States, the Executive can make such an agreement, and on approval of Congress put those provisions into effect even though they have no place in a treaty.

Mr. LEONARD. Mr. Chairman, that is exactly the point I am trying to make. Apparently I am making it very poorly.

If the Executive makes a treaty on a subject which is not within the treaty power, it is void from the beginning. What steps are taken thereafter is of no concern. It is a void document.

If, on the other hand, you have a vote of the whole Congress on a subject which is not within the treaty power but is within the congressional power, you raise no question because the combination of Executive and congressional power at that point makes the intended action valid.

In other words, it can be justified under either one or the other. The courts, basically, will pay no attention to it. However, if you came forward solely with that piece of paper, even though you got Senate ratification and it was not submitted to the Congress, it might well be that the entire transaction, however valid appearing on its face, would be void.

Senator ALLEN. Well, I still understand you to say that the action. by the Congress would breathe life into this void document.

Mr. LEONARD. Mr. Chairman, as a purely practical matter it is true. Once Congress has agreed by bill to whatever is contained in this document for practical purposes, if it is either within executive or congressional power that is sufficient.

Senator ALLEN. I would feel that this treaty that you would regard as being void would be submitted to the Senate for its advice and consent, requiring a two-thirds vote. Then I would think that there would properly be a statute, a separate instrument, passed by both Houses of the Congress and approved by the President, in which the Congress agreed to the disposition of the property.

I think it would be entirely improper, actually, to submit a document to the Senate requiring a two-thirds vote, and then sending it over to the House and say that that just requires a majority vote. Actually, the procedure would be to proceed to ratify the treaty in the Senate and on that ratification, to proceed with a statute. That would probably be the way it would be handled, I would think.

Mr. LEONARD. Mr. Chairman, it is an excellent thing to think about. I think it would eliminate most of the problems. I am only concerned with the question of where the House of Representatives refuses to accede to this.

Senator ALLEN. Yes; that would create quite an impasse if the Senate approves a treaty and the House fails to approve the statute or the bill providing for the disposition of property. Where would we be then?

PANAMANIAN POSSESSION OF CANAL ZONE

Mr. LEONARD. You would have a void treaty on your hands, but you would have a Canal Zone which was full of Panamanian soldiers. Senator ALLEN. Do you think that the Executive would put Panama in control of the canal and the Canal Zone?

Mr. LEONARD. At least as of the day the treaty is approved by the Senate.

Senator ALLEN. You do not feel that they would wait for congressional approval of the disposition of the property?

Mr. LEONARD. You have representatives of the State Department coming before you, Mr. Chairman. I suggest that that question be asked of them.

Senator ALLEN. Well, that creates a considerable prospective problem, does it not?

Mr. LEONARD. On behalf of the Senators who have maintained the actions in the past we have requested the courts to have the defendants maintain the status quo in the Panama Canal until this question could be settled.

In every case the Department of Justice, acting for the executive branch of Government has come forward and objected on the ground that unless they are free to let Panamanians into the Canal Zone without opposition it will considerably upset their so-called negotiations.

I had originally assumed that the defendants in this case, which would be the President, the Secretary of State, and the principal Ambassador-at-large involved in this, would be just as anxious as the Congress to get this question determined. After all, it is a matter which will go forward for many years to come. It affects the balance of powers between the three branches of Government directly.

Once established by this particular precedent it will go on for many years into the history of this country.

Senator ALLEN. What action can Congress take to file litigation to stay the negotiations? What action can Congress take from a practical point of view to prevent the ongoing of the negotiations looking to a treaty?

Mr. LEONARD. There is no reason why any action should be taken to prevent the Executive going forward with his negotiations.

As far as I can see at the present time, the Executive through the Department of State is convincing the Panamanians that the authority to give the Canal Zone to them exists in the executive department. As of this morning's paper I understand that for being willing to accept it, Panama is now demanding $5 billion. That may, of course, be just hearsay rumor on the part of the newspaper; I don't know.

However, on the purely practical side, which your question is directed to, Mr. Chairman, the moment of truth comes when a proposal is in fact transmitted to the country.

Senator ALLEN. Yes, you fear that if the Senate approves the treaty, which you feel would be void, they would put Panamanians into possession of the canal. That would seem to be a very present danger that there should be some method of circumventing in advance.

Mr. LEONARD. Well, Mr. Chairman, I think we have to recognize the fact that President Carter, to whom I have no knowledge of how this matter has been presented or whether he even knows about it, seriously, is obligated to enforce the laws. He is obligated to defend the Canal Zone until such time as a proper document a proper action of this Government is taken to change that status.

I would not deny for a moment, I would not even question, that President Carter has every intention of retaining the Canal Zone in the possession of the United States until the day that either the Senate acts or the Congress passes a bill.

I believe that at this point at least his Secretary of State is of the opinion that a treaty is sufficient.

SELF-EXECUTING TREATY

Senator ALLEN. Does he feel that would be a self-executing treaty? Mr. LEONARD. Well, to be perfectly frank, Mr. Chairman, this is a phrase which the State Department often uses. A self-executing treaty is one which does not require what is known as implementing legislation by the Congress.

A treaty actually is a law. It stands on a parallel with any other form of law. If the treaty is on a proper subject, a matter of foreign affairs, it has status in this country and before the courts exactly as any legislation of the Congress.

To call a treaty self-executing or not self-executing, therefore, is like saying whether an act of Congress is self-executing or not selfexecuting. The answer is that it is the law. It does not have to be selfexecuting or not self-executing. It takes effect. It states what the principle of law is and it will be enforced.

Senator ALLEN. Thank you very much, Mr. Leonard.

Senator Scott?

Senator SCOTT. Mr. Chairman, I appreciate the research and the work that has gone into the testimony that Mr. Leonard has given us. It has been very enlightening to me personally, and I am sure to the committee.

I just want to pose one question and then defer to my colleague from Utah, Mr. Hatch.

Would you see the need for both a treaty and/or an article IV law by both Houses of Congress that if, in fact, the United States acquired various rights by virtue of the 1903 treaty and then purchased the feesimple title from private owners, thereby acquiring the rights under the treaty, and also acquiring proprietary rights entitled under feesimple to land that was formerly private property?

Mr. LEONARD. No necessity for the treaty whatsoever. In fact, I do not believe it is a proper subject for a treaty, as I have already testified. Senator SCOTT. Thank you.

Mr. Chairman, I defer to Senator Hatch.

Senator ALLEN. Senator Hatch?

Senator HATCH. Mr. Leonard, as you have indicated in your testimony the precedents are well established that with regard to the disposition of U.S. property and territories, that the Congress customarily would have to authorize the President to enter into treaty negotiations with the foreign government before any transfers should be undertaken.

This is very clear cut and very well settled by the law. In this particular case the treaty negotiators have gone ahead without this authority. If it is clear cut and this is the law-and I have reviewed much of what you have said-then why, in your review, hasn't the President simply taken steps to have a bill introduced in Congress to give him the authority to enter into such negotiations?

Mr. LEONARD. I can only state a personal opinion. Why the President does a particular thing is not within my competence, and I could not even offer an opinion on it. I can state what the actual effect is, and whether it is intended or not I have to leave to the committee.

The effect of the present procedure takes advantage of what amounts to a disagreement, to some extent, in position between the House of Representatives and the Senate of the United States.

It is possible—and I say possible, because nobody can foretell precisely that such a bill would not be passed by the House of Representatives.

Senator HATCH. That is very probable, as a matter of fact.

Mr. LEONARD. Well, let me put it this way. The procedure which has been adopted in this particular case, which is being adopted and which is being justified for the first time, as I understand it, by the State

Department in its claim of concurrent power would bypass the House of Representatives. It would be, in fact, well designed to do that. I do not say that it is intended for that purpose.

Senator HATCH. Do you believe that all that will be requested of the Congress will be ratification by the Senate on the theory that this is just a routine treaty to be ratified by the Senate?

Mr. LEONARD. That is correct.

Senator HATCH. Do you believe that that is going to be made by the executive branch?

Mr. LEONARD. I believe that is the expressed intent of the executive branch-I do not believe there will be any argument. I do believe that they will sooner or later submit to the Senate a proposal. They will simply state that it is a treaty. They assume that the United States has already made a moral commitment to do whatever it is that the treaty provides.

The Senate will send it to its Committee on Foreign Relations as opposed to sending it to the committees which have jurisdiction over Panama Canal matters. It will bypass, of course, the House of Representatives. It will bypass the conference committees.

Senator HATCH. Ignoring the constitutional provisions?

Mr. LEONARD. Well, not necessarily ignore. I am assuming for the purpose of this answer, as you did in your question, that the State Department does in fact have concurrent power to give away U.S. property.

Senator HATCH. You assume that for the purpose of answering, but you do not believe that is so.

Mr. LEONARD. No; I do not believe it is so.

The thing is, as a practical matter it does not make any difference. If a proposal comes up here by treaty on a subject which is not a proper matter of a treaty-let us say, to increase the income tax of all Americans and pay the excess to France-it might be voided at a later date. I am referring to this question of delivering the Canal Zone. The thing is, once it is delivered it does not matter whether the treaty is void or not void.

The practical fact is that the zone will have been delivered to a power which is no longer concerned with what our courts may say. Senator HATCH. You are saying that even though it is clear cut that the Congress has to approve the disposal of U.S. territory that in this particular case the executive branch has chosen to ignore that provision for whatever reason, valid or invalid, and there is a possibility that the reason for this is because of a belief that perhaps the House of Representatives will not go along with this disposition. The State Department is going ahead with a treaty that, in effect, if agreed to will ultimately result, as a practical matter, in the takeover of sovereign American territory that is presently governed by the United States, pursuant to a valid treaty or to a valid existing state of law? Mr. LEONARD. It is pursuant to a set of laws enacted by the Congress. Senator HATCH. It is pursuant to congressional enactment and congressional authority?

Mr. LEONARD. Correct.

Senator HATCH. You are saying that if that is so, regardless of what the Constitution says, regardless of what the law says, and regardless of whether the Congress has the right, in practice, State Department apparently intends to deliver the canal in contravention of the Con