my left. Miles is from the Office of Legal Counsel of the Department of Justice. He did the principal work on the opinion that we rendered to the Secretary of State.

I would like at this time to introduce for the record the opinion that we did for the Secretary of State because I refer to that in my testimony.

The CHAIRMAN. We are very glad to have that and it will be made part of the record.

Attorney General BELL. Thank you.

[The information referred to follows:]

Hon. CYRUS R. VANCE,

The Secretary of State

OFFICE OF THE ATTORNEY GENERAL,
Washington, D.C., August 11, 1977.

DEAR MR. SECRETARY: Your letter of July 23, 1977, requests my opinion in connection with the negotiation of a new Panama Canal treaty, on a question involving the treaty-making power of the President and its relation to the power of Congress to dispose of territory or property belonging to the United States. The question is whether a treaty may dispose of territory or property belonging to the United States absent statutory authorization.

I

The Constitution provides that the President shall have power to make treaties with the advice and consent of the Senate, if two-thirds of the Senators present concur (Article II, section 2, clause 2); and it provides further that treaties made under the authority of the United States shall be the "supreme law of the land." Article VI, clause 2.

At the same time, the Constitution gives Congress a number of specific powers that bear upon matters commonly subjected to the treaty power. I need mention but a few: pursuant to Article I, section 8, Congress has power to regulate foreign trade, to provide for the protection of rights in useful inventions, to make rules governing captures on land and water, to establish a uniform rule for naturalization, and to punish offenses against the law of nations; and, of course, pursuant to Article IV, section 3, Congress has power to dispose of territory or property belonging to the United States. Moreover, there is authority for the proposition that Congress has general power, quite apart from these specific powers, to enact legislation relating to foreign affairs. United States v. CurtissWright Export Corp., 299 U.S. 304 (1936); Perez v. Brownell, 356 U.S. 44 (1958). A question that arose very early in our constitutional history was whether the existence of these congressional powers limits the power of the President and the Senate to make law by treaty.1 If a treaty touches a matter tha Congress has power to regulate, can the treaty be given the force and effect of law, in and of itself, if Congress has not enacted legislation putting it into effect? The question you raise is one aspect of that general question.

II

I shall make two observations with respect to the general issue. First, from the earliest days of the Republic the decisions of the Supreme Court have provided convincing support for the proposition that a treaty, unaided by an act of

1 Indeed, the question arose in connection with the debate over the very first treaty nade under the Constitution, the Jay Treaty with Great Britain. The treaty provided for the creation of certain commissions and therefore required an appropriation of funds. President Washington, together with other Federalists, including Hamilton and Chief Justice Ellsworth, took the view that the treaty, of its own force, created an indispensable obligation as a matter of domestic law, and that Congress was required to appropriate he necessary funds. Jefferson, Madison, and other Republicans took the view that either the Jay Treaty nor any other treaty could regulate matters that were within the egislative jurisdiction of Congress. See 10. Butler, The Treaty-Making Power of the nited States, 422 et seq. (1902) S. Crandall, Treaties, Their Making and Enforcement, 65 et seq. (2d ed. 1916): 1 W. Willoughby, The Constitutional Law of the United States, 49 (2d ed. 1929). Jefferson reiterated the Republican view in his Manual of Parliamentary Practice. See L. Henkin, Foreign Affairs and the Constitution, 141 et seq. (1972) [herenafter cited as Henkin].

Congress, has the force and effect of law even if it touches a matter that is within the legislative jurisdiction of Congress. Indeed, the Court has held that a treaty, of its own force, may supplant prior acts of Congress to the extent that its enforcement may require that result. Cook v. United States, 288 U.S. 102 (1933). The seminal case, United States v. The Schooner Peggy, 1 Cranch 103 (1801), was decided in an opinion by Chief Justice Marshall. During the undeclared naval war with France, Congress enacted a statute that authorized the President to grant commissions to public vessels, with instructions that they should seize armed French vessels on the high seas, bring them to our ports, and subject them to condemnation in the courts of the United States. Act of July 9, 1798, c. LXVIII, 1 Stat. 578. In 1800 the American ship Trumbull, sailing under a commission issued pursuant to the statute, seized an armed French vessel, the schooner Peggy, and brought her to port. A proceeding was then instituted against the Peggy; and after a sentence of condemnation was entered in the court below, an appeal was taken to the Supreme Court.

During the pendency of the appeal President Jefferson, with the advice and consent of the Senate, concluded a treaty with France. The treaty provided, among other things, that vessels that had been seized by either nation should be "mutually restored" if they were not yet "definitively condemned."

Thus, when the case of the Peggy came before the Court, the question was whether the treaty controlled the disposition of the prize. If it did, the schooner was to be restored to France. If it did not, the schooner was to be condemned, under the statute; and the proceeds were to be distributed equally between the United States and the officers and men of the Trumbull.

The Court held that the treaty controlled. It was a law of the United States, not by virtue of any act of Congress, but by virtue of the command of the Constitution itself; and it had intervened during the appeal to change the statutory rule that had governed the decision below. Because the sentence of condemnation was not yet final, the schooner was not yet "definitively condemned,” and it was therefore subject to the treaty. The schooner was to be restored to France. 1 Cranch at 109-10.

Implicit in the decision was the elementary proposition that the President, with the advice and consent of the Senate, had power to make a self-executing treaty affecting the disposition of a vessel captured at sea even though Congress had power to make rules (and had in fact made a conflicting rule) governing the same subject matter. The Court expressed no doubt whatever about the constitutionality of the treaty.

In the years that followed this decision the Supreme Court gave “self-executing" effect to numerous treaties that disposed of matters that Congress had power to regulate. See, e.g., Hijo v. United States, 194 U.S. 315, 323-24 (1904) (claims against the United States); Cook v. United States, 288 U.S. 102, 118-19 (1933) (customs inspections); Bacardi v. Domenech, 311 U.S. 150, 161 (1940) (trademarks); see generally Henkin, supra, note 1, at 149. Today, as a result of these and other decisions, it could not be successfully maintained, as a general proposition, that the treaty power stops where the power of Congress begins. Ou the contrary, the Court has said that the treaty power, operating of itself and without the aid of congressional legislation, extends to all proper subjects for negotiation between our Nation and others. Asakura v. City of Seattle, 265 U.S. 332 (1924). The lesson of history is that these "proper subjects" include many that are within the legislative jurisdiction of Congress.

My second observation is related to the first. I have suggested that the two powers the power of Congress to legislate and the power of the President and the Senate to make "self-executing" treaties-may overlap. I do not mean to suggest that they are coextensive. They are both created by the Constitution, and they are both subject to the fundamental limitations that are imposed thereunder; but the limitations that apply to the one do not necessarily apply to the other. The treaty power may extend to subjects that are beyond the legislative jurisdiction of Congress. Missouri v. Holland, 252 U.S. 416 (1920). Similarly, the President and the Senate may be powerless to accomplish by treaty what the Congress can accomplish by statute.

In Reid v. Covert, 354 U.S. 1 (1957). Mr. Justice Black stated the applicable rule: "The prohibitions of the Constitution were designed to apply to all branches of the National Government," including the Congress, the Executive, and the Executive and Senate combined. Id. at 17-18.

I shall elaborate briefly upon the latter point. Some lower courts' and many serious students of the law have expressed the view that certain matters are subject to regulation by Congress only; and that a treaty, if it purports to deal with such a matter, can be given effect only to the extent that it may be authorized or implemented by statute. The two matters that are frequenly mentioned in this regard are the rising of revenue and the appropriation of funds. The Constitution provides that "all" bills for raising revenue "shall" originate in the House (Article I, section 7, clause 1), and, further, that "no" money shall be drawn from the Treasury except in consequence of "appropriations" made by law (Article I, section 9, clause 7). In the face of these provisions the opinion expressed by some is that a treaty purporting to require the establishment or alteration of a revenue measure, or a treaty purporting to require an appropriation of funds, could not be effective, as a matter of domestic law, in the absence of statutory authorization or implementation. I find it unnecessary to deal with that issue in order to answer the question you have put to me.

I now turn to the question at hand.

III

The point of departure is the broad princple that was laid down in Geofroy v. Riggs, 133 U.S. 258 (1890), and was repeated in Asakura v. City of Seattle, 265 U.S. 332 (1924), to which I have alluded above: the treaty power extends to all proper subjects for negotiation between our Nation and others; and when a treaty purports to do so, it acts ex proprio vigore, without the aid of legislation, and is effective for all purposes, provided it does nothing that is forbidden by the Constitution.

Does the Constitution forbid the President and the Senate to make selfexecuting treaties disposing of territory or property belonging to the United States? I have taken note of the opinion, held by some, that the Constitution entrusts certain matters to Congress alone. In my opinion, however, the disposition of territory or property belonging to the United States is not such a matter. In my view, territory or property belonging to the United States may be disposed of by action of the President and the Senate under the treaty clause.

There are at least four considerations that support this conclusion, and I shall discuss them briefly below.

First, the fact that the Constitution gives Congress power to dispose of territory or property belonging to the United States does not suggest that the President and the Senate have no power to do so under the treaty clause. This was the implicit teaching of Marshall's dicision in the Peggy and of the cases that followed. The existence of power in Congress does not imply an absence of power under the treaty clause. On the contrary, the one proposition of which we can be certain is that many of the powers that are given to Congress are shared by the President and the Senate when they act, under the treaty clause, to conclude and effectuate bona fide international agreements.

I think it follows that if one were to hold that the power to dispose of territory or property belonging to the United States resides in Congress alone and is distinguishable in that respect from the numerous powers that are shared, one would be obliged to find some basis for the distinction either in the text of the Constitution or in the history of the relevant provisions. I find none.

The language of Article IV, insofar as it confers upon Congress the power of disposition, is identical to the language of Article I, which confers upon Congress numerous powers that may be exercised by the President and the Senate through self-executing treaties. Article IV says that Congress "shall have power" to dispose of territory or property belonging to the United States, just as Article I says that Congress "shall have power" to regulate foreign commerce, to make rules governing captures on land and water, and so forth. Article IV goes on to say that Congress shall have power to make "all" needful rules and regulations respecting territory or property. As in the case of Article I, however, Article IV

3 See, e.g., Turner v. American Baptist Missionary Union, 24 F. Cas. 344 (No. 14251) (C.C. Mich. 1852).

John C. Calhoun was of opinion that a treaty could not authorize a withdrawal of funds from the Treasury. 29 Annals of Congress 531-32 (1816). In 1949 the Secretary of State. Dean Acheson, expressed the view a treaty could not put the United States into war. Only Congress could declare war. Hearings on the North Atlantic Treaty Before the Senate Committee on Foreign Relations, 81st Cong., 1st Sess., pt. 1, at 11 (1949). See generally Henkin, supra, note 1, at 159.

does not say that the powers it confers-the power to dispose of territory or property, and the power to make rules and regulations respecting it-shall reside in Congress alone.

The record of the proceedings during the Constitutional Convention supports the interpretation that is suggested by the language of the Constitution itself. The territory and property clause of Article IV was adopted during a general discussion of the role that the central government should play in connection with the territorial claims that had been asserted by the several States with respect to the western lands. In the course of the discussion there was no suggestion whatever that the purpose or effect of the clause was to give Congress exclusive power to authorize or implement international agreements disposing of territory or property. See 2 M. Farrand, The Records of the Federal Convention of 1787 45759, 461-66 (rev'd ed. 1937) [hereinafter cited as Farrand].

The history of the treaty clause is even more conclusive. During the course of the convention several proposals were put forth. One would have required every treaty to be approved by both Houses of Congress. 2 Farrand, supra, at 532, 538. That proposal was rejected. Another would have required the Senate to concur in treaties, but would have exempted peace treaties from that requirement, except for peace treaties depriving the United States of territory or territorial rights. 2 Farrand, supra, at 533-34, 543. That proposal was rejected as well. In its place, the convention adopted a proposal that required the Senate to concur in all treaties.

It may be possible to interpret these actions in a different way, but the simplest and, for me, the most persuasive interpretation is this: the delegates to the convention assumed (1) that the treaty power could and would extend the questions of territory, and (2) that treaties, including treaties affecting rights in territory, could be effective in the absence of action by both Houses.5

This brings me to the third consideration that supports my basic conclusion. To the extent that the Supreme Court has spoken to the question, the Court has said that the President, with the concurrence of the Senate, may conclude a treaty disposing of territory or property belonging to the United States, and that such a treaty may convey good title to the territory or property in question. No act of Congress is required. United States v. Brooks, 10 How. 442 (1850); Doe v. Wilson, 23 How. 457 (1859); Holden v. Joy, 17 Wall. 211 (1872); Best v. Polk, 18 Wall. 112 (1873); Francis v. Francis, 203 U.S. 233 (1906). The dictum in Holden v. Joy is one of the clearest statements of this principle:

[I]t is insisted that the President and Senate, in concluding such a treaty. could not lawfully covenant that a patent should be issued to convey lands which belonged to the United States without the consent of Congress, which cannot be admitted. On the contrary, there are many authorities where it is held that a treaty may convey a good title to such lands without an act of Congress conferring it . . .". [17 Wall. at 247).

I do not hold that these cases provide a sufficient answer to the quetsion you have raised. They all involved Indian treaties and questions of "title" to real property. I do think, however, that the principle for which they stand is one of general application; that it bears upon your question; and that it supports the conclusion I have reached. These cases, when viewed in light of the textual and historical considerations I have already mentioned, provide a substantial support for the proposition that a treaty disposing of territory or property belonging to the United States may be self-executing. I find no cases to the contrary.

Finally, my conclusion is supported by historical practice. While I do not suggest that the commands of the Constitution may be attenuated by persistent practices not in conformity with them, I must observe that as a matter of historical fact the President and the Senate have made self-executing treaties disposing of territory or property belonging to or claimed by the United States. I shall mention one rather clear example of the practice. Under the Florida Treaty with Spain (1819) the United States ceded all its territory beyond the Sabine River in Texas to Spain in return for the cession of the Spanish terri

5 I should note that this very point was considered in the State conventions that were called to ratify the new Constitution. The objection was made that the treaty clanse gave the President and the Senate power to alienate territory. The Virginia and North Carolina conventions proposed a remedial amendment that would have required every treaty ceding or compromising rights or claims of the United States in territory to be approved by three-fourths of the members of both Houses of Congress. 2 Documentary History of the Constitution 271 382 (in U.S. Cong. Doc. Ser., No. 4185) see generally S. Crandall, Treaties Their Making and Enforcement 220-21 (2d ed. 1916).

tories of east and west Florida. 8 Stat. 252, T.S. No. 327. While there had been some dispute over some of the relevant boundaries, the congressional debates, as well as President Monroe's annual message to Congress, make it clear that many considered the action to be an outright cession of American territory in exchange for Spanish territory. 36 Annals of Congress 1719-38, 1743-81; 2 J. Richardson, Messages and Papers of the Presidents 55 (1896). No statute authorizing the American cession was ever enacted."

There have been a number of other treaties that have been self-executing insofar as they have disposed of territory or property belonging to the United States or have compromised a claim of the United States to property or territory claimed by a foreign power.' I do not believe that the validity of these treaties could be questioned today.

In stating my opinion with respect to the question you have raised, I have taken note of general principles that bear upon the relation between congressional power and the power of the President and the Senate under the treaty clause; but I have no occasion to express an opinion with respect to any other questions that may arise in that context, and I express none.

Sincerely,

GRIFFIN B. BELL,
Attorney General.

DISPOSITION OF PROPRIETARY INTERESTS OF U.S. IN CANAL ZONE

Attorney General BELL. I am pleased to appear before your committee to testify on and discuss with you a problem arising in connection with the Panama Canal Treaty. The question is whether the treatymaking power of the United States vested by the Constitution in the President, by and with the advice and consent of two-thirds of the Senate, can dispose of the proprietary interests of the United States in the Panama Canal Zone by treaty alone, or whether such action requires in addition legislation authorizing, approving, or actually effectuating such transfer.

PROVISIONS GOVERNING U.S. RIGHTS IN CANAL ZONE

The principal provisions governing the rights of the United States in the Panama Canal Zone are to be found in articles II and III of the Hay-Bunau-Varilla Treaty of 1903.

Pursuant to those articles, the Republic of Panama granted to the United States, and I quote:

In perpetuity the use, occupation, and control of a zone of land and land under water for the construction, maintenance, operation, sanitation, and protection of said Canal of the width of 10 miles extending to the distance of 5 miles on each side of the center line of the route of the Canal to be constructed.

That is from article II.

The quote continues:

All the rights, power, and authority within the zone mentioned and described in Article II of this agreement and within the limits of all auxiliary lands and waters mentioned and described in said Article II which the United States would possess and exercise if it were the sovereign of the territory within which said lands and waters are located to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power, or authority.

The self-executing effect of the Spanish cession was the subject of two decisions by the Supreme Court. Foster v. Neilson, 2 Pet. 253 (1829); United States v. Arredondo 6 Pet. 691 (1832). Congress did enact legislation authorizing the President to take possession of the Spanish cessions and to provide rules for their government. Act of March 3 1819. c. XCIII, 3 Stat. 523, Act of March 3, 1821, c. XXXIX, 3 Stat. 637.

7 Se e.g. United States-Great Britain Treaty of 1842 (Webster Ashburton) 8 Stat. 572, T.S. No. 119: United States-Great Britain Treaty in Regard to Limits Westward of the Rocky Mountains of 1846 (Oregon Treaty), 9 Stat. 869, T.S. No. 120.

96-949-77—14