# Mickey Edwards, Member of Congress, Oklahoma v. James Earl Carter, President of the United States

> Court of Appeals for the D.C. Circuit · June 13, 1978 · 580 F.2d 1055

URL: https://www.frixlaw.com/law-library/cases/358556

## Case

- **Full name:** Mickey EDWARDS, Member of Congress, Oklahoma, Et Al., Appellants, v. James Earl CARTER, President of the United States
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** June 13, 1978
- **Citations:** 580 F.2d 1055; 189 U.S. App. D.C. 1
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Fahy, McGowan, MacKinnon
- **Cited by:** 32 later opinions in the Frix Law Library

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## Opinion text

Opinion PER CURIAM.
Dissenting opinion filed by MacKINNON, Circuit Judge.
PER CURIAM:
This is an appeal from the District Court’s dismissal of a challenge to appellee’s use of the treaty power to convey to the Republic of Panama United States properties, including the Panama Canal, located in the Panama Canal Zone.
1
Appel
*1056
lants, sixty members of the House of Representatives, sought a declaratory judgment that the exclusive means provided in the Constitution for disposal of United States property requires approval of both Houses of Congress,
see
Art. IV, § 3, cl. 2, and that therefore the Panama Canal Zone may not be returned to Panama through the Treaty process, which invests the treaty-making power in the President by and with the advice and consent of two-thirds of the Senators present,
see
Art. II, § 2, cl. 2. Appellee contends that the Constitution permits United States territory to be disposed of either through congressional legislation or through the treaty process, and that therefore the President’s decision to proceed under the treaty power is constitutionally permissible.
The District Court did not reach the merits of this controversy; rather, it dismissed the complaint for lack of jurisdiction after concluding that appellants lacked standing because they had failed to demonstrate injury in fact from the President’s invocation of the treaty process. A notice of appeal and a request for a preliminary injunction pending appeal were immediately filed with this court. Appellee has moved for summary affirmance of the District Court’s judgment either on the jurisdictional ground stated by the District Court or on the merits of appellants’ contention; appellants have moved for summary reversal. We have heard oral argument and have considered the case on an expedited basis.
2
For the reasons appearing below, we affirm the dismissal of the complaint, not on the jurisdictional ground relied on by the District Court but for failure to state a claim on which relief may be granted.
I
In addition to its argument on the merits, appellee has presented several substantial and complex challenges to the jurisdiction of the federal courts to adjudicate the merits of the constitutional question presented in this case. We refer not only to the contentions as to lack of standing, but also to the arguments that appellants’ action is both premature and presents a nonjusticiable political question. Deciding only the jurisdictional issue before us could result in this court, or the Supreme Court, remanding the case for further proceedings either on the merits or on jurisdictional issues. Because the merits of this controversy present a pure question of law, with no
*1057
need of a hearing for fact development, because these merits are so clearly against the parties asserting jurisdiction, and because the judgment appealed from was based on only one of several asserted grounds of lack of jurisdiction, we believe it is appropriate to proceed directly to the merits of this case. This conclusion is bolstered when the time constraints imposed by the immediacy of Senate action on the treaties are considered.
See Adams v. Vance,
187 U.S.App.D.C. 41, at 45, n.7 , 570 F.2d 950 at 954 n.7 (1978), and cases cited therein.
Consequently, the precise question we address is whether the constitutional delegation found in Art. IV, § 3, cl. 2 is exclusive so as to prohibit the disposition of United States property by self-executing treaty — i.
e.,
a treaty enacted in accordance with Art. II, § 2, cl. 2, which becomes effective without implementing legislation.
II
Article IV, § 3, cl. 2 of the Constitution states in its entirety:
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
Appellants contend that this clause gives Congress exclusive power to convey to foreign nations any property, such as the Panama Canal, owned by the United States.
3
We find such a construction to be at odds with the wording of this and similar grants of power to the Congress, and, most significantly, with the history of the constitutional debates.
4
The grant of authority to Congress under the property clause states that “The Congress shall have Power . . .,” not that only the Congress shall have power, or that the Congress shall have exclusive power. In this respect the property clause is parallel to Article I, § 8, which also states that “The Congress shall have Power . . .”
*1058
Many of the powers thereafter enumerated in § 8 involve matters that were at the time the Constitution was adopted, and that are at the present time, also commonly the subject of treaties. The most prominent example of this is the regulation of commerce with foreign nations, Art. 1, § 8, cl. 3, and appellants do not go so far as to contend that the treaty process is not a constitutionally allowable means for regulating foreign commerce. It thus seems to us that, on its face, the property clause is intended not to restrict the scope of the treaty clause, but, rather, is intended to permit Congress to accomplish through legislation what may concurrently be accomplished through other means provided in the Constitution.
The American Law Institute’s Restatement of Foreign Relations, directly addressing this issue, comes to the same conclusion we reach:
The mere fact, however, that a congressional power exists does not mean that the power is exclusive so as to preclude the making of a self-executing treaty within the area of that power.
ALI Restatement of Foreign Relations Law (2d), § 141, at 435 (1965). The section of the Restatement relied on by the dissent merely states that the treaty power, like all powers granted to the United States, is limited by other restraints found in the Constitution on the exercise of governmental power. (Rest.For.Rel. § 117).
5
Of course the correctness of this proposition as a matter of constitutional law is clear.
See Reid v. Covert,
354 U.S. 1 , 77 S.Ct. 1222 , 1 L.Ed.2d 1148 (1957);
Geoffroy v. Riggs,
133 U.S. 258 , 10 S.Ct. 295 , 33 L.Ed. 642 (1890);
Asakura v. Seattle,
265 U.S. 332 , 44 S.Ct. 515 , 68 L.Ed. 1041 (1924), also relied on by the dissent. To urge, as does the dissent, that the transfer of the Canal Zone property by treaty offends this well-settled principle — that the treaty power can only be exercised in a manner which conforms to the Constitution — begs the very question to be decided, namely, whether Art. IV, § 3, cl. 2 places in the Congress the
exclusive
authority to dispose of United States property.
6
There are certain grants of authority to Congress which are, by their very terms, exclusive. In these areas, the treaty-making power and the power of Congress are not concurrent; rather, the only department of the federal government authorized to take action is the Congress. For instance, the Constitution expressly provides only one method — congressional enactment — for the appropriation of money:
No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.
Art. I, § 9, cl. 7. Thus, the expenditure of funds by the United States cannot be accomplished by self-executing treaty; implementing legislation appropriating such funds is indispensable. Similarly, the constitutional mandate that “all Bills for raising Revenue shall originate in the House of Representatives,” Art. 1, § 7, cl. 1, appears, by reason of the restrictive language used, to prohibit the use of the treaty power to impose taxes.
7
*1059
These particular grants of power to Congress operate to limit the treaty power because the language of these provisions clearly precludes any method of appropriating money or raising taxes other than through the enactment of laws by the full Congress. This is to be contrasted with the power-granting language in Art. 1, § 8, and in Art. IV, § 3, cl. 2. Rather than stating the particular matter of concern and providing that the enactment of a law is the only way for the federal government to take action regarding that matter, these provisions state simply that Congress shall have power to take action on the matters enumerated.
Thus it appears from the very language used in the property clause that this provision was not intended to preclude the availability of self-executing treaties as a means for disposing of United States property. The history of the drafting and ratification of that clause confirms this conclusion. The other clause in Art. IV, § 3 concerns the procedures for admission of new states into the Union, and the debates at the Constitutional Convention clearly demonstrate that the property clause was intended to delineate the role to be played by the central government in the disposition of Western lands which were potential new states. Several individual states had made territorial claims to portions of these lands; and as finally enacted the property clause, introduced in the midst of the Convention’s consideration of the admission of new states, sought to preserve both federal claims and conflicting state claims to certain portions of the Western lands.
8
The proceedings of the Virginia state ratifying convention provide further evidence of the limited scope of the property clause. During a debate in which the meaning of the clause was questioned, Mr. Grayson noted that the sole purpose for including this provision was to preserve the property rights of the states and the federal government to the Western territory as these rights existed during the Confederation.
9
This history demonstrates the limited concerns giving rise to the inclusion of Article IV, § 3, cl. 2 in the Constitution. Whether or not this historical perspective might serve as a basis for restricting the scope of congressional power under the property clause, we view it as persuasive evidence for rejecting the claim that Article IV is an express limitation on the treaty power, foreclosing the availability of that process as a constitutionally permissible means of disposing of American interests in the Panama Canal Zone.
Ill
The debates over the treaty clause at the Constitutional Convention and state ratify
*1060
ing conventions even more directly demonstrate the Framers’ intent to permit the disposition of United States property by treaty without House approval. As originally reported to the Convention, authority to make treaties would have been entrusted to a majority of the Senate, without even Presidential participation.
10
However, this structure was thought to entrust too much power to the Senate, and the provision was subsequently amended to include an active Presidential role. Nonetheless, concern over the extensive scope of the power remained; particularly worrisome was the potential use of treaties as a means of effecting territorial cessions. Elbridge Gerry expressed this fear when he noted that “[i]n Treaties of peace the dearest interests will be at stake, as the fisheries, territory, etc. In treaties of peace also there is more danger to the extremities of the Continent, of being sacrificed than on any other occasion.”
11
Concern about the sweeping character of the treaty clause led to several proposed amendments aimed at limiting its exercise. One amendment would have restricted this power by requiring that “no Treaty of Peace affecting Territorial rights should.be made without the concurrence of two thirds of the (members of the Senate present.)”
12
For some delegates, however, merely increasing the level of Senate approval did not go far enough towards ensuring the proper exercise of the treaty power. Thus Connecticut’s Roger Sherman proposed an amendment providing that “no such [territorial] rights should be ceded without the sanction of the Legislature.”
13
The Committee of Eleven, in whose hands this issue finally rested, rejected the proposed amendment for House participation. Instead, a provision requiring a two-thirds Senate vote for the passage of all treaties was adopted. This choice clearly indicates the Framers’ satisfaction was a supermajoritarian requirement in the Senate, rather than House approval, to serve as a check upon the improvident cession of United States territory.
That the two-thirds voting requirement did not affect the scope of the treaty power, but only made ratification of treaties more difficult, was clearly understood at the state ratifying conventions. An amendment proposed at the Virginia Convention provided that
no treaty ceding, contracting, restraining, or suspending the territorial rights or claims of the United States shall be made, but in case of the most urgent and extreme necessity; nor shall any such treaty be ratified without the concurrence of three fourths of the whole number of the members of both houses respectively.
14
This, and a similar amendment offered at the North Carolina Convention,
15
evidence the broad interpretation given Article II, § 2 at the time of its inception.
16
As was true of the effort at the Constitutional Convention to introduce House participation in ratification of treaties, these state attempts to limit the treaty power as now contained in the Constitution also failed.
That those who framed and ratified the Constitution rejected several express attempts to limit the treaty power in the
*1061
manner now urged by appellants greatly undermines the interpretation of that power they press upon us. From this evidence we conclude that the disposition of property pursuant to the treaty power and without the express approval of the House of Representatives was both contemplated and authorized by the makers of the Constitution.
IV
In view of the lack of ambiguity as to the intended effects of the treaty and property clauses, it may be surprising that judicial pronouncements over the past two centuries relating to these constitutional provisions are somewhat vague and conflicting. However, none of the actual holdings in these cases addressed the precise issue before us — whether the property clause prohibits the transfer of United States property to foreign nations through self-executing treaties. While, therefore, neither the holdings nor the dicta of these previous cases are dispositive of the case before us, we believe that in the main they support the conclusions we have stated heretofore.
One line of cases, involving the property clause, has arisen in the context of the division of power between the federal government and the states. In discussing this question, the Supreme Court has stated that Article IV “implies an exclusion of all other authority over [United States] property which could interfere with this right or obstruct its exercise.”
17
We think that the most reasonable interpretation of such dicta, occurring in the context referred to, is that there is a lack of any constitutional basis for exercise of authority by individual states over United States property.
18
But that a specific congressional power is exclusive against intrusion by the states does not necessarily remove it from the sphere of the federal treaty power.
*1062
Another line of cases, involving the treaty clause, has arisen in the context of conveyances by the federal government to Indian tribes. The leading case on the power to convey such land by self-executing treaty is
Holden v. Joy,
84 U.S. 211 , 21 L.Ed. 523 (1872). In quieting adverse claims to certain lands west of the Mississippi which had previously been conveyed to the Cherokee nation by treaty, the Court had to determine the validity of the original grant to the Indians. The Court noted that
still it is insisted that the President and Senate, in concluding [a treaty for the transfer of property], could not lawfully covenant that a patent should issue to convey lands which belonged to the United States without the consent of Congress. ... On the contrary, there are many authorities where it is held that a treaty may convey to a grantee good title to such lands without an act of Congress conferring it. .
Id.
at 247 . Because later congressional enactments repeatedly recognized the validity of the transfer, the Court found it unnecessary to rest its decision on this constitutional basis. However, the principle espoused is repeated in subsequent Supreme Court decisions.
The treaty in
Holden
involved a cession of non-Indian lands in return for tribal property. More common, however, were treaties in which Indian tribes ceded to the United States portions of their lands in return for, generally, some money and the creation of reservations. Usually these reservations consisted of tracts of territory originally occupied by the tribes and excepted by the treaty provisions from cession to the federal government. In order to fully comprehend the nature of the property interest transferred by the United States in these reservations it is necessary to understand the extent of the Indians’ legal title prior thereto. The law early recognized the limited possessory rights of Indians in their territory. Ultimate title, that necessary to dispose of the property, rested solely in the hands of the federal government.
Johnson v. McIntosh,
21 U.S. (8 Wheat.) 543 , 5 L.Ed. 681 (1823). The purpose of the reservation treaties was to transfer the Indian tribes’ possessory rights to most of their property to the United States in exchange for a fee simple title in excepted reservations. Such treaties, then, clearly disposed of United States property interests.
Supreme Court cases involving these cessions have provided dicta similar to that of
Holden v. Joy.
In
Jones
v.
Meehan,
175 U.S. 1 , 20 S.Ct. 1 , 44 L.Ed. 49 (1899), the Court considered the nature of Indian property rights acquired by “reservation.” There, Chief Moose Dung of the Chippewas had “reserved” a certain tract of land in a treaty ceding tribal territory to the United States. He subsequently leased some of that property to various individuals. A challenge was made questioning the Chief’s authority to engage in that transaction. As framed by the Court, the issue for resolution was whether the treaty merely confirmed Chief Moose Dung’s original right of occupancy in the reserved lands or whether the treaty granted a fee simple interest to the reservee. In holding that a fee simple passed under the treaty,
19
the court noted that “[i]t 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.” 175 U.S. at 10 , 20 S.Ct. at 5 . Thus the Court concluded that the treaty power alone was sufficient to transfer the underlying United States title in the reserved lands. In a similar situation the Court in
Francis v. Francis,
203 U.S. 233, 241-42 , 27 S.Ct. 129 , 51 L.Ed. 165 (1906), stated that “this court and the highest court of Michigan concur in holding that a title in fee may pass by treaty without the aid of an act of Congress.”
*1063
As is true of most of the cases in which the Supreme Court has addressed the scope of the treaty power,
Holden, Jones,
and
Francis
involved the federal government’s interaction with Indian tribes. Because of the
sui generis
nature of the relationship between the Indian tribes and the federal government, it might be argued that these decisions are not dispositive.
20
We think, however, that they are persuasively supportive of the authority of the President and the Senate under the treaty clause.
V
While certain earlier judicial interpretations of the interplay between the property clause and the treaty clause may be somewhat confused and less than dispositive of the precise issue before us, past treaty practice is thoroughly consistent with the revealed intention of the Framers of these clauses. In addition to the treaties with Indian tribes upheld in the cases discussed above, there are many other instances of self-executing treaties with foreign nations, including Panama, which cede land or other property assertedly owned by the United States
21
That some transfers have been effected through a congressional enactment instead of, or in addition to, a treaty signed by the President and ratified by two-thirds of the Senate present lends no support to appellants’ position in this case, because, as stated previously, self-executing treaties and congressional enactments are alternative, concurrent means provided in the Constitution for disposal of United States property.
For instance, the Treaty with Panama of 1955, 6 U.S.T. 2273, transferred certain property (a strip of water and other sites within the Canal Zone) to Panama without concurring legislation by the Congress, while transfer of other property (owned by the United States but within the jurisdiction of Panama) was, under the terms of the treaty itself, dependent upon concurring legislation by the Congress. The decision to cast some but not all of the articles of conveyance in non-self-executing form was a policy choice; it was not required by the Constitution.
The transfer of property contemplated in the current instance is part of a broader effort in the conduct of our foreign affairs to strengthen relations with another country, and indeed with the whole of Latin America. The Framers in their wisdom have made the treaty power available to the President, the chief executant of foreign relations under our constitutional scheme, by and with the advice and consent of two-thirds of the members of the Senate present, as a means of accomplishing these public purposes.
We do not think it is relevant that many previous treaties couched in self-executing terms have been different in scope, dealing with boundary issues or otherwise ceding land which was claimed both by the United States and by a foreign nation.
22
We note
*1064
first that it is hardly surprising that land transfers often involve boundaries or other disputed territory; indeed, it is in these situations that the decision to dispose of land would most often be made. Second, the grant of power to Congress in the property clause is not predicated on the territory disposed of being on a boundary or being the subject of conflicting claims. Thus we do not understand the basis for appellants’ argument that, even if that clause does not provide the exclusive means of disposing of disputed or boundary lands, it is the exclusive source of power for disposing of land concededly owned by the United States. If the status of the land has any bearing on whether it may be conveyed without congressional enactment under the property clause,
23
it would seem to cut in a direction contrary to that urged by appellants, for the Western lands that were the focus of the property clause were the subject of conflicting claims by the states and the federal government.
It is important to the correct resolution of the legal issue now before us not to confuse what the Constitution permits with what it prohibits. In deciding that Article IV, § 3, cl. 2 is not the exclusive method contemplated by the Constitution for disposing of federal property, we hold that the United States is not prohibited from employing an alternative means constitutionally authorized.
24
Our judicial function in deciding this lawsuit is confined to assessing the merits of the claim of appellants that in the conduct of foreign relations in this matter, involving,
inter alia,
the transfer of property of the United States, the treaty power as contained in Article II, § 2, cl. 2, was not legally available. We hold, contrarily, that this choice of procedure was clearly consonant with the Constitution.
For the foregoing reasons, the judgment of the District Court dismissing the complaint is
Affirmed.
MacKINNON, Circuit Judge, dissenting:
The United States Constitution in Article IV, § 3, cl. 2
1
provides that “The
Congress
*1065
shall have power
to dispose of . . property
belonging to the United States (emphasis added). Because of this specific constitutional provision, it is my opinion that the treaty clause
2
does not authorize the President to dispose of the large property interests of the United States in the Panama Canal Agreement without the approval of
Congress
to the transfer of the
property
involved. Yet the pending treaty with the Republic of Panama would violate the Constitution and disenfranchise the 435 members of the House of Representatives from voting as members of “the Congress” upon the proposal to “dispose of” eight billion dollars
3
worth of Canal “property belonging to the United States.”
4
Since we are supposedly a participatory democracy, where the right and duty of the entire Congress to participate in that decision is clearly stated in the Constitution, and has been recognized by prior Presidents, it is almost impossible to understand the motivation for excluding the House of Representatives from exercising its constitutional authority.
In my opinion, Senator Connally of Texas, when he was Chairman of the Senate Committee on Foreign Relations, correctly interpreted the Constitution when he stated in the Senate debate on the procedure to be followed in authorizing a transfer of United States property to Panama:
The House of Representatives has a
right
to a voice as to whether any transfer of real estate or other property shall be made either under treaty or otherwise.
88 Cong.Rec. 9267 (December 3, 1942) (emphasis added).
Recognizing that the House of Representatives has a vote on the disposition of the Panama Canal does not operate as a restriction on the “treaty” power. The
Per Curiam
opinion is in error in treating this as a matter of “power” when it is merely a question of ratification procedure. Treaties may still be entered into by the President upon all subjects that are amenable to international agreement, and to become effective the “treaty provisions” must be ratified by two-thirds of the Senate; but if any treaty attempts to “dispose of Territory or Property belonging to the United States . . . ” and it is ratified by the Senate, Art. IV of the Constitution still requires the concurrence of the House of Representatives to “carry out the obligations
by the enactment of
legislation.”
Id.,
Senator Connally, 88 Cong.Rec. 9270 (December 3, 1942) (emphasis added). In the transfer to Panama that was the subject of Senator Connally’s remarks, the Senate by its vote acquiesced in that procedure and the House joined the Senate in voting to authorize the transfer of the property to Panama before the agreement was executed.
The net result is that unless it is previously approved by the “Congress,”
i. e.,
the Senate
and the House of
Representatives,
5
the Constitution prohibits the effectuation of a self-executing agreement transferring the property in the Canal Zone belonging to the United States. The
Per Curiam
opinion reaches a different conclusion, but to my mind does not satisfactorily explain why this enormous disposition of property to the Republic of Panama should not recognize the proper role of Congress in such transfer as was followed in all prior transfers where the value of the property was infinitesimal compared to what is involved here. From its conclusion I thus respectfully dissent.
I. IS A POLITICAL QUESTION INVOLVED?
At the outset appellee defends on the theory that this case involves a political
*1066
question which this court is without authority to decide. In other words, he contends that the treaty clause of the Constitution gives him the unchallengeable option to “dispose of . . . property belonging to the United States” without the approval of “the Congress” as set forth in Art. IV, § 3, cl. 2.
6
What this asserted defense amounts to is the claim that since he has already decided to proceed, and has taken certain steps that may violate the Constitution, the courts have no power to declare his conduct to be unlawful.
A question is not deemed political, however, when its resolution is committed to the courts by the Constitution.
Elrod
v.
Burns,
427 U.S. 347, 351 , 96 S.Ct. 2673 , 49 L.Ed.2d 547 (1976) (Brennan, J.);
Baker v. Carr,
369 U.S. 186, 217 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962). The issue here is plainly one that calls for a determination of which procedure is constitutionally required to approve an international agreement that will “dispose ... of property belonging to the United States” of the value of eight billion dollars (S.Ex.Rep. No. 95-12, 95th Cong., 2nd Sess., at 99 (Feb. 3, 1978) (hereafter “Committee Report”)).
The construction of treaties is the peculiar province of the judiciary.
Jones v. Meehan,
175 U.S. 1, 32 , 20 S.Ct. 1 , 44 L.Ed. 49 (1899). This case presents a question for which there is no “textually demonstrable constitutional commitment of the issue to a coordinate political department.” Instead, the question is purely judicial; it is committed by Art. Ill, § 2 to the courts established pursuant to Art. Ill, § 1 in which the “judicial power [is] vested.” It is the type of controversy that the United States courts decide every day, and there is no lack of judicial and manageable standards for resolving it. Nor is the issue impossible for the courts to decide without a prior policy determination clearly involving non-judicial discretion. Since the issue is solely one of constitutional interpretation and both parties to the controversy are firmly committed to adhering to the dictates of the Constitution, and it is a relatively simple matter to do so, a proper declaration of the correct constitutional procedure would not embarrass or indicate any lack of respect due the two coordinate branches that are represented by the parties hereto. It should also be added that the issue is so clearly answered by the Constitution that the case does not involve any unusual need to adhere to any prior political decision. Therefore our authority to decide the issue is clear.
Baker v. Carr, supra,
369 U.S. at 217 , 82 S.Ct. 691 .
II. THE EXCLUSIVE POWER TO DISPOSE OF PROPERTY BELONGING TO THE UNITED STATES
No contention is advanced by this opinion that “Article II treaty power stops where the power of Congress begins,” (Appellee Br., p. 12) but it is contended that in any international agreement the ratification or authorization procedure must conform to
specific
constitutional provisions. Therefore, the specific provisions of the Constitution outside of Art. I, § 8, which designate “Congress” as the body to levy taxes (Art. I, § 7), appropriate money (Art. I, § 9), and dispose of Government
property
(Art. IV, § 3, cl. 2), require that international agreements that transgress into these areas can only become effective by enactments of Congress. The President cannot violate any of these provisions under the claimed need or desire for a self-executing treaty.
The issue we are confronted with at the outset concerns the proposal in the Panama Canal treaty
(see
Appendix) that would immediately replace the interest
in perpetuity
of the United States in the Panama Canal to act “as though it were sovereign” with a mere 21-year operational right, would immediately transfer the entire Panama Railroad and certain other valuable structures (Appendix, Art. XIII), and would eventually provide for the
automatic
transfer on December 31,1999, of whatever interest the United States still retained in the entire Panama Canal. Appellee claims all this can be accomplished by the pending Carter-Tor
*1067
rijos treaty with nothing more than Senate approval; and that the participation of the House in those parts of the agreement that dispose of property belonging to the United States is not required and will not be sought. Such construction conflicts directly with the above-quoted provision of the Constitution and with past practices. A number of Supreme Court decisions also contain statements which recognize the exclusive power of
Congress
under Art. IV, § 3, cl. 2 to dispose of United States territory and property.
A.
The Supreme Court Decisions
The decision in
Alabama v. Texas,
347 U.S. 272 , 74 S.Ct. 481 , 98 L.Ed. 689 (1954), involved a motion by the States of Alabama and Rhode Island for leave to file complaints challenging the constitutionality of the Submerged Lands Act of 1953. In a
Per Curiam
opinion, the motions were denied on the ground that Art. IV, § 3, cl. 2 prohibited such suits by the states:
The power of
Congress
to dispose of any kind of property belonging to the United States “is vested in Congress
without limitation.”
[Quoting
United States
v.
Gratiot,
39 U.S. (14 Pet.) 526, 537 , 10 L.Ed. 573 .]
347 U.S. at 273 , 74 S.Ct. at 481 (emphasis added).
7
Much earlier in
Gibson v. Chouteau,
80 U.S. (13 Wall.) 92, 99 , 20 L.Ed. 534 (1872), the Court had stated:
“With respect to the public domain, the Constitution vests in
Congress
the power of disposition and of making all needful rules and regulations. That power is subject to no limitations.” [
8
] (Emphasis added.)
In
Wisconsin Central Railroad Company v. Price County,
133 U.S. 496, 504 , 10 S.Ct. 341, 344 , 33 L.Ed. 687 (1890), the Court remarked: “[Art. IV] implies an exclusion of all other authority over the property which could interfere with this right or obstruct its exercise.” This same conclusion was reached in
United States v. Celestine,
215 U.S. 278, 284 , 30 S.Ct. 93, 94 , 54 L.Ed. 195 (1909):
By the second clause of § 3, art. 4 of the Constitution,
to Congress and to it alone,
is given “power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” [Emphasis added.]
The Supreme Court in
Sioux Tribe v. United States,
316 U.S. 317 , 62 S.Ct. 1095 , 86 L.Ed. 1501 (1942) also acknowledged the power of the Executive to withdraw lands from the territory subject to their being sold, but recognized that the power to
dispose
of the land rested in the Congress:
Section 3 of Article IV of the Constitution confers upon Congress
exclusively
*1068
“the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”
316 U.S. at 324 , 62 S.Ct. at 1098 (emphasis added). However, Congress had previously revealed its awareness of this practice and acquiesced in it ( 316 U.S. at 324-25 , 62 S.Ct. 1095 ).
Geofroy v. Riggs,
133 U.S. 258 , 10 S.Ct. 295 , 33 L.Ed. 642 (1890) remarks:
The treaty power, as expressed in the Constitution, is in terms unlimited
except by those restraints which are found in that instrument
against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent.
Fort Leavenworth R. Co. v. Lowe,
114 U.S. 525, 541 [ 5 S.Ct. 995 , 29 L.Ed. 264 ]. But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country.
133 U.S. at 267, 10 S.Ct. at 297 (emphasis added). In my view, one of the “restraints” to which
Geofroy
refers is the Art. IV, § 3, cl. 2 power vested in Congress to dispose of property. By treaty, the President could not sell or give away Alaska to another country. Similarly, in my view, the President by treaty cannot dispose of our property in the Panama Canal without authorization from
Congress.
Another decision which discusses the treaty power is
Asakura v. Seattle,
265 U.S. 332 , 44 S.Ct. 515 , 68 L.Ed. 1041 (1924):
The treaty-making power of the United States is not limited by any express provision of the Constitution, and, though it does not extend
“so far as to authorize what the Constitution forbids,”
it does extend to all proper subjects of negotiation between our government and other nations.
Geofroy v. Riggs,
133 U.S. 258, 266, 267 [ 10 S.Ct. 295 , 33 L.Ed. 642 ];
In re Ross,
140 U.S. 453, 463 [ 11 S.Ct. 897 , 35 L.Ed. 581 ];
Missouri v. Holland, 252
U.S. 416 [ 40 S.Ct. 382 , 64 L.Ed. 641 ],
265 U.S. at 341 , 44 S.Ct. at 516 (emphasis added). Since the treaty power does not extend so far as to authorize what the Constitution forbids, the power does not extend so far as to permit the disposal of our territorial and property interest in the Panama Canal without the approval of Congress as required by Art. IV, § 3, cl. 2.
If the scope of the treaty power were so broad as to permit such disposal, then the statements of the Supreme Court would be incongruent: if the treaty power were that broad, there would be a need to explain why Art. IV was not an express power limiting Art. II. Since there are no references to this possible conflict, it seems reasonable to state that the Court never conceived that the treaty power might be so broad as to permit disposition of property covered by Art. IV. These cases are wholly consistent with the Supreme Court’s rulings concerning the treaty power.
Thus, the proper construction of the constitutional provisions is straight-forward and sensible. The treaty power is not limited by any express power in the Constitution
because it does not extend so far as to permit the disposition of property without an Act of Congress.
The power of Congress to dispose of property has no limit — in the language of
Celestine ,
it resides in Congress alone; and thus, the treaty power is not a restriction on Congress, because it cannot operate to dispose of United States property.
9
*1069
B.
Comparison of the Powers of Congress to Levy Taxes, to Make Appropriations and to Dispose of Property
That Congress has exclusive power to dispose of United States property is also demonstrated by a comparative analysis of those delegated powers in which the right of Congress is admitted to be exclusive.
In overview, it is important to realize that the power to make treaties does not confer absolute authority upon the President and the Senate. It is a very broad power, but it is not unlimited. As a noted authority wrote before the form of the instant Panama Treaty became a national issue:
Broad assertions and extravagant adjectives, some of them supported by the Supreme Court, might leave the impression that the President can exercise virtually all the national political power in foreign affairs, at least concurrently with Congress. In fact, large areas have never been claimed by him [except now in the Panama Canal Treaty], In principle, it would be difficult for a President to dispute that by vesting in Congress “all legislative Powers herein granted”
and
granting it a comprehensive array of specific powers, the Constitution barred the President from exercising these powers even as regards foreign affairs. Whatever, then, he might do by treaty or other international agreement . . . , he cannot
unilaterally
regulate commerce with foreign nations, or make domestic laws punishing piracy or defining offenses against the law of nations, or declare war.
Equally, he cannot exercise, even for foreign affairs purposes, the general powers allocated to Congress: he cannot
regulate patents or copyrights or the value of money, or establish post offices, or
dispose of American territory or property;
he cannot enact necessary and proper laws to carry into execution the powers of Congress or even his own powers, for example, criminal laws to enforce an arms embargo. He cannot spend money on his own authority for foreign aid, or draw funds from the Treasury, without Congressional appropriation, to build an embassy. Presumably, the unexpressed lawmaking powers of Congress deriving from national sovereignty are also generally denied the President: he cannot enact general immigration laws by executive order.
L. Henkin, Foreign Affairs and the Constitution 94-96 (1972) (emphasis and matter in brackets added). The foregoing quotation does not support the assertion that Henkin’s treatise agrees with the conclusion of the
Per Curiam
opinion.
Cf. Per Curiam
op., at -n. 4, of 188 U.S.App.D.C., at 1057 n. 4, of 580 F.2d.
10
The
Per Curiam
opinion grasps at the word “unilaterally” in one sentence and asserts therefrom that Henkin in the next sentence is also speaking solely of the President’s power to act “unilaterally.” Such construction cannot be supported. Henkin, in the first sentence, is referring to
unilateral
action by the President that transcend-
*1070
ed what “he might do by treaty or
other international agreement.”
However, in the very next sentence, which is the critical sentence, Henkin shifts to deal with the President’s entire “foreign affairs purposes” and these unquestionably refer to his powers to enter into treaties, international agreements, as well as to act
unilaterally
and by “executive order” as referred to in the last sentence of the quoted paragraph. In this broad context Henkin states that the President “cannot . . . dispose of American territory or property . . . ” It is absurd to suggest that this statement by Henkin was only intended to state that the President was prohibited from disposing of American territory or property by
executive agreement,
and not by treaty, since no person has ever suggested that American territory could be disposed of by a mere executive agreement with another nation, much less by
unilateral
action or executive order without congressional approval. Henkin’s statement with respect to the disposition of American territory and property thus included the President’s power to make treaties and international agreements as well as his power to act unilaterally and by executive order. These are all encompassed within “foreign affairs purposes.” It must thus be admitted that the present treaty is an attempt by the President to “dispose of American territory [and] property ... for
foreign affairs purposes
” — and that Henkin states this cannot be done by treaty. Thus, Henkin is
not
“in agreement with [the
Per Curiam
] opinion.”
Per Curiam
at - n. 4, of 188 U.S.App. D.C., at 1057 n. 4 of 580 F.2d. Not that Henkin is authoritative or binding — he is a highly respected professor.
The powers of government insofar as they may be exercised by treaty, are thus subject to the
specific
limitations imposed by the Constitution. First, Art. I, § 7, cl. 1, of the United States Constitution provides:
All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
Second, Art. I, § 9, cl. 7, provides:
No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.
Henkin has stated — and the appellee recognizes — that in a treaty the Executive cannot obviate these provisions by levying taxes or appropriating money from the United States Treasury.
In 1844 the President laid before the Senate a treaty he had negotiated which for at least three years would place the power to exceed certain maximum import duties beyond the power of Congress. The Senate, however, took the view that the constitutional method of imposing regulatory duties was by Act of Congress rather than by treaty. 2 Hinds’ Precedents § 1532, at 998-1001. In a subsequent instance when the right of the Senate to act on a treaty was questioned, the Senate observed that the right of Congress to act by legislation was admitted and therefore the Report of the Senate Committee on Foreign Relations recommended that the treaty be amended by inserting: “This treaty shall not take effect until the same shall have been approved by the Congress.” 2 Hinds’ Precedents § 1533, at 1001-1002. The property transfer portion of the present treaty could be handled accordingly as all governments are on notice of the constitutional requirements of Art. IV.
Appellee also recognizes, as Henkin states,
supra,
that a Declaration of War is subject to the same limitation: it is beyond the President’s
unilateral
power to declare war by edict. Likewise all seem agreed that “the United States cannot declare war” by treaty. Henkin,
supra,
at 159-60. That conclusion, however, devolves from the provision of Art. I, § 8, which states “Congress shall have Power ... To declare War.” There is nothing in the Constitution which specifically forbids a President from declaring war to comply with a prior treaty. The Committee Report relies upon “the unique legislative history of the declaration of war clause” which supposedly
*1071
“clearly indicates the power was intended to reside jointly in the House and Senate.” Committee Report, at 74. This admits that the House of Representatives has a “share of the warmaking power,”
id.
To read the clause as a concurrent power would unconstitutionally confer upon the President the power to declare war. However, since the President is commander-in-chief and represents the nation in our foreign relations, there is even less reason to read in the necessity for House participation in a declaration of war from the language of Art. I, § 8, solely the asserted history of the clause, then there is
to give effect to the separate constitutional limitation specifically requiring an Act of Congress to dispose of United States property as set forth in Art. TV, § 3, cl. 2.
This, unlike the war power, is one of the “general powers allocated to Congress” that Henkin recognizes the President cannot exercise in a treaty. Henkin,
supra.
This then brings us to the placement of the power to dispose of Government property. This power is not specifically included in the general enumeration of powers set forth in Art. I, § 8, but it is undoubtedly one of the “general powers” “necessary and proper” for carrying into execution the previously enumerated powers and practically all other powers. In a separate provision outside Art. I, § 8 (like the taxing and appropriation provisions), Art. IV, § 3, cl. 2 imposes the requirement that “The
Congress
shall have Power to dispose of . . . Territory or Property belonging to the United States.” (Emphasis added.)
In imposing a specific procedure
outside Art. I, § 8,
for “Congress” to dispose of Government property, the Framers followed the same pattern as they did with respect to the other
general provisions
of the Constitution — levying taxes and making appropriations. Thus, Art. IV in requiring action by
both
Houses of Congress is cast in exactly the same mold as the tax and appropriátion powers. Therefore, under the format of the Constitution, disposing of the United States’
property interests in the Panama Canal by a donation is entitled to action by the Congress to the same extent as would be an appropriation for the same amount which admittedly could only be accomplished by enactment of the “Congress.”
It must thus be recognized that what is clearly required in the Carter-Torrijos Panama Canal Treaty is exactly what was done in the 1955 treaty involving the Panama Canal Zone: an Act of Congress was required to approve those provisions of the treaty which called for the disposition of United States property.
11
To say that the Constitution is loose in this particular, and that it permits the President to have a free choice between bypassing the House, as is proposed here, and submitting the matter to the House and the Senate as was done in 1955, is to permit an important constitutional provision to be bypassed in the name of expediency — the exact motivation for which is not readily apparent. If there is any policy inherent in this decision, it should be to determine that at least a majority of the nation’s representatives who have been elected on a one man-one vote apportionment support the property disposition portions of the treaty. Even a casual survey of the treaty
(see
Appendix) indicates that a great deal of implementing legislation is required and contemplated, and it has been recognized since 1796,
see
text at-of 188 U.S.App.D.C., at 1075 of 580 F.2d,
infra,
that the President and the Senate cannot foreclose the House of Representatives from exercising its independent constitutional authority in all respects.
There are two other obvious matters which appear to require implementing legislation that a treaty cannot assure:
*1072
(1) Art. Ill, § 5, requires the Panama Canal Commission (constituted by and in conformity with the laws of the United States, see Art. Ill, § 3) to pay the Republic of Panama for municipal services “ten million United States dollars . . per annum.” The treaty does not provide that this sum will be paid annually from Canal tolls, which in any event are covered into the United States Treasury, and an appropriation may be required. At page 188 of - U.S.App.D.C., at page 1058 of 580 F.2d the
Per Curiam
opinion states:
Thus, the expenditure of funds by the United States cannot be accomplished by self-executing treaty .
I agree. From the foregoing it also appears that this “self-executing treaty [does] require the expenditure of funds by the United States . . . ” Hence, as the
Per Curiam
opinion states, the transfer “cannot be accomplished” and the treaty cannot be valid in its present form.
The treaty is self-executing in that it purports to create an annual liability of the United States for the sum of $10 million. It appears, from note 22 at page-of 188 U.S.App.D.C., at pages 1063-1064 of 580 F.2d of the
Per Curiam
opinion, that the majority agree with this interpretation.
(2) Art. X, § 9 of the treaty also authorizes the affiliation of employees of the Panama Canal Commission with local and international unions, that they may negotiate collective bargaining contracts
with the Panama Canal Commission, and that labor relations with employees “shall” be conducted in accordance with forms of collective bargaining established by the United States after consultation with employee unions.
This apparently makes a collective bargaining contract mandatory and in operation might require all Panama Canal workers to belong to a particular labor organization. It seems to be pure legislation with respect to the employee relations of the United States’ employees and is very far-reaching. The briefs do not discuss the issue and no authority has been cited in support of this obvious legislative action.
It would thus appear to be extremely doubtful that the President is authorized to commit the United States to all of this procedure without approval of Congress.
C.
The Restatement of Foreign Relations Law and the Constitutional Requirements for the Disposition of United States Property
The Restatement, Second, Foreign Relations Law of the United States, is hardly authority for the proposition that the power to dispose of property
concurrently
resides in Art. II and in Art. IV of the Constitution. The majority cite, as the section most strongly supporting the concurrent power notion, a sentence in comment (f) to section 141:
The mere fact, however, that a congressional power exists does not mean that the power is exclusive so as to preclude the making of a self-executing treaty within the area of that power.
Per Curiam
at-of 188 U.S.App.D.C., at 1058 of 580 F.2d. In applying this broad single sentence to the specific constitutional power here vested in Congress, the majority ignore the general thrust of the Restatement.
The section of the Restatement which explains the relative boundaries of the treaty power and the powers delegated to Congress is section 118(1). That section states that the power of Congress to enact legislation does not limit the treaty power; but in so providing, that section does not stand for the proposition that property belonging to the United States may be disposed of by treaty without approval by the Congress. Section 118(1) states:
An international agreement made by the United States as a treaty may deal with any matter as to which the United States has the
constitutional power
to make an international agreement under the rules stated in § 117. [Emphasis added.]
Comment (b) to that section states:
b. Treaty power and power of Congress compared.
The treaty power of the United States is not limited by the extent
*1073
of the powers delegated to the Congress by the Constitution. This follows from the fact that the treaty power is itself an independent power granted to the President and the Senate under the Constitution.
Nothing in section 118, however, supports a power to dispose of government “property” by treaty without the consent of the Congress. The Constitution vests that power in Congress by a separate provision.
In so doing, the grant to Congress of the power does not operate to impose a limitation on the power of the President to enter into international agreements but instead merely provides the necessary implementing procedure that must be complied with under the Constitution before certain international agreements become fully effective to accomplish their stated purpose.
This opinion does not contend for its thesis, as the
Per Curiam
opinion attributes (rightly or wrongly) to Professor Raoul Berger, “that the President and Senate cannot exercise under the treaty power any power granted to Congress . .” Per Curiam, at - n.4, of 188 U.S.App.D.C., at 1057 n.4 of 580 F.2d. Admittedly such construction would “virtually wipe out the treaty power,” as Henkin states. Furthermore, however, this opinion does not contend, as the Per
Curiam
opinion might conclude, that the President under his treaty power can exercise practically all the powers granted to Congress. That would, to paraphrase Henkin, “virtually wipe out the legislative power” in many recognized fields.
To be more specific, and to deal with the facts of this case, rather than attempting to write broad dicta, this opinion does contend that the treaty power cannot wipe out powers granted to Congress with the specificity indicated in Art. IV, § 3, cl. 2. Beyond that this opinion draws no line; but to my mind it seems clear, for the following and other reasons, that the placement of this separate paragraph in an article and section removed from Art. I, § 8 carries with it somewhat the same purpose to indicate exclusive congressional power that one derives from the location outside Art. I, § 8 of those provisions which impart exclusivity to Congress in the exercise of the taxing and appropriation powers.
The foregoing interpretation is consistent with the language of section 117 of the Restatement, which is referred to in section 118. Section 117 provides:
(1) the United States has the power under the Constitution to make an international agreement if
******
(b) the agreement does not contravene any of the limitations of the Constitution applicable to all powers of the United States.
Comment (d) states:
No power granted to the United States by the Constitution is unlimited. The power of the United States to make international agreements is not an exception to this rule. The extent of each power grounded in the Constitution must be determined not only by the constitutional language granting it but also by the restrictions placed upon it
by other constitutional limitations.
The comment seems to be addressed in part to such constitutional restrictions as were added by the Bill of Rights. For example, the President and the Senate could not cause a treaty to go into effect which abridges the freedom of speech of the American citizenry. The power of Congress to dispose of “property” fits precisely within this same classification but may have a stronger base in the intendment of the Framers since it was part of the original Constitution. Other constitutional limitations — here Art. IV, § 3, cl. 2 — thus place restrictions upon the manner of implementing the treaty power: property cannot be disposed of without the approval of Congress. Section 117 is consistent with this.
Section 141(3), which is relied upon by the majority, does not disparage this analysis in any respect. That section provides:
A treaty cannot be self-executing under the rule stated in Subsection (1) and have the effect stated there
to the extent that
*1074
it involves governmental action that under the Constitution can be taken only by the Congress.
(Emphasis added.) By way of illustration, comment (f) states:
f. Constitutional limitation on self-executing treaties.
Even though a treaty is cast in the form of a self-executing treaty, it does not become effective as domestic law in the United States upon becoming binding between the United States and the other party or parties, if it deals with a subject matter that by the Constitution is reserved
exclusively
to Congress. For example, only the Congress can appropriate money from the treasury of the United States. (Emphasis in original)
Illustration:
8. The United States enters into a treaty with state A under which A agrees to cede a portion of its territory to the United States in return for payment of $7,200,000. Advice and consent to the ratification of the treaty is given by the Senate and it is ratified by the President. The ratification does not have the effect of appropriating the $7,200,000.
Further action to this effect must be taken by both Houses of Congress.
(Emphasis added).
The mere fact, however, that a Congressional power exists does not mean that the power is exclusive so as to preclude the making of a self-executing treaty within the area of that power. Thus the fact that Congress has power to regulate commerce with foreign nations does not mean that the making of a self-executing treaty dealing with foreign commerce is precluded; in fact, many provisions in treaties dealing with foreign trade and commerce are self-executing.
The comment explicitly states that a treaty cannot be self-executing if it deals with a subject that is reserved exclusively to Congress. Art. IV, § 3 provides that Congress “shall,” thus
exclusively,
dispose of property of the United States, just the same as “only the Congress can appropriate money from the treasury of the United States.” The two powers,
i.e.,
dispose of property and appropriate money, are practically identical, and there is every reason to suspect that the Framers intended that both powers should be exclusively exercised by Congress. A disposition of Government property is to all intents and purposes an appropriation thereof. The Rules of the House of Representatives originally adopted in 1794 and amended in 1874 and 1896 have equated the appropriation of property with other appropriations:
All bills making
appropriations of money, or property
or requiring such appropriation to be made . shall first be considered in a Committee of the Whole .
Rules of the House of Representatives, 95th Cong. (1977), Rule XXIII, ¶ 1, § 865 (emphasis added). In addition, Rule XIII, ¶ 1, § 742 speaks of
First. A calendar of the Committee of the Whole House on the state of the Union, to which shall be referred . bills of a public character directly or indirectly
appropriating money or property.
(Emphasis added.)
See
4 Hinds’ Precedents § 4840, at 1050 (1907).
It is unreasonable to suggest that the Constitution is more concerned with the transfer of eight billion dollars of United States
funds
from the Treasury than with the transfer of eight billion dollars of United States
property.
And the potential earning power of the Canal makes it much more valuable even than eight billion in dollars.
12
*1075
It was observed in the discussion of the Supreme Court precedents that it is undisputed that the treaty power is not
limited
by the extent of the powers delegated to the Congress. Yet this does not mean that the general treaty power, so far as it exists, can overrun
specific
constitutional provisions. To state the proposition otherwise, the treaty power is not
so broad in the first instance
that it permits the disposition of property of the United States to be made other than in the manner specifically provided for by Art. IV, § 3, cl. 2. The treaty power clearly allows the President with the approval of the Senate to establish rights and obligations between this nation and other countries. However, the actual power to dispose of property
exclusively
rests in the Congress — which includes the House of Representatives,
i. e.,
a treaty cannot without the approval of both houses transfer
property
belonging to the United States. Justice Jackson, when as Attorney General in 1940 he advised President Roosevelt on the fifty destroyers transaction with Great Britain, held that the exchange for British bases was permissible because Congress had
previously
given the President such statutory authority to transfer unneeded naval vessels. He further advised, however, that since Congress had not by law given greater authority, the President was precluded from transferring
new
mosquito boats that were under construction. 39 Op.Atty.Gen. 484 (1940), 86 Cong.Reg. 11355. This recognized that, even in those critical times, only Congress could authorize the disposition of United States property.
It is unquestioned that the
negotiation
of treaties rests solely in the President. As Justice Sutherland declared for the Court in 1936:
He alone negotiates. Into the field of negotiation, the Senate cannot intrude; and Congress itself is powerless to invade it .
United States v. Curtiss-Wright Corp.,
299 U.S. 304, 319 , 57 S.Ct. 216, 220 , 81 L.Ed. 255 (1936). From the earliest times of our country, however, as reflected in a resolution adopted by the House of Representatives in 1796, it has been established:
That when a treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend for its execution as to such stipulations on a law or laws to be passed by Congress, and it is the constitutional right and duty of the
House of Representatives
in all such cases to deliberate on the expediency or inexpediency of carrying such treaty into effect, and to determine and act thereon as in their judgment may be most conducive to the public good.
5 Annals of Congress 782 (1967) (emphasis added). The House of Representatives in 1871 adopted a resolution to similar effect. Cong. Globe, 42d Cong., 1st Sess. 835 (1871). Senate Document 92-83, 92d Cong., 2d Sess., 488, notes that the early precedents which prohibited a treaty from circumventing the constitutional appropriation power of Congress (Art. I, § 9), have
“apparently been uniformly adhered to” since 1796.
13
The last paragraph of comment (f), from which the majority quote, only illustrates the necessity for analyzing each case separately. This is precisely what the majority has not done. The
mere fact
that a congressional power exists, is not,
by itself,
enough to render a treaty touching that
*1076
power ineffective without legislative action. However, there are some congressional powers — appropriation, revenue, and
disposal of property
— which are so basic to the legislative function and are so intrinsically legislative that the treaty power cannot operate without the concurrent exercise of the congressional power. The power to dispose of property is a power with specific constitutional limitations, substantially identical to the appropriation power, and by the Constitution, like the appropriation power and the power to levy taxes, it rests exclusively with the Congress. The transfer of property to the Republic of Panama requires an Act of “Congress” pursuant to Art. IV, § 3, cl. 2. Section 141(3) is consistent with this approach.
In short, it does not appear that anything in the Restatement supports the proposition that the Panama Canal, the Panama Railroad, and the other United States property which the Carter-Torrijos Treaty proposes to convey to Panama, can be transferred except by the “Congress.” The treaty power is thus not unlimited and any treaty which disposes of substantial government property must, in that respect, be approved by both houses of Congress before coming into full force.
D.
Exclusive Language and the Placement of Article IV
Appellee advances two other arguments for the proposition that the power to dispose of United States property rests concurrently in the Executive and the Congress. First, it is suggested that since the property disposal clause does not use the same “exclusive language” as the appropriations and revenue clauses, the power to dispose of property must be concurrent.
See
Appellee Br. at 9. Second, it is argued that the property disposal clause is found in Art. IV which deals with state-federal and state-state relationships. This, it is argued, strongly suggests that the provision was intended to distribute power between the state and federal governments rather than among the three branches of the federal government.
Id.
This argument however, is an incomplete answer. This is so because once a power is distributed between the state and federal government it must still be distributed between the three departments that constitute the three federal departments.
The first argument, that because the property disposal clause does not use, what is termed, “exclusive” language, the power rests concurrently in the Executive and the Congress, misapprehends the nature of Art. IV.
Of course the terminology by which a power is delegated to Congress is significant, and may be completely controlling in determining the scope of the President’s treaty power; but each situation must be considered separately on its peculiar facts.
If any reasonably general statement were to be formulated for drawing the line at a point where the President’s treaty power terminates, it would be at that point where the Constitution indicates that a legislative power was to be exercised.
That applies to the taxing and appropriation power. And it is submitted that the Constitution is addressing itself to legislative enactment in Art. IV when it confers the power on
Congress
“to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States. . . . ” Certainly to “make all needful Rules and Regulations” refers to legislation. This clause is the source of the power that Congress exercised for more than a century in legislating for our territories, before they became states.
14
*1077
Providing for the disposition of property of the United States must also be recognized as a close counterpart to enactments providing for the appropriation of money to the United States. The paragraph is thus referring throughout to action by Congress.
Thus, the fact that the property disposal clause does not refer specifically to the “House,” or to a “law” as in the taxing and appropriation clauses, is not controlling, because it otherwise indicates that the
Congress shall
have power to
legislate
for the territories and property belonging to the United States. It further lays down a very broad restriction, on all acts of the legislature, executive and judiciary,
i. e.,
that nothing said in the Constitution should be construed to prejudice any claims of the United States or of any State.
15
It is a gross understatement to construe the constitutional powers conferred by Art. I, § 8 and Art. IV, § 3, cl. 2 merely as though “these provisions state
simply
that Congress shall have power to take action on the matters enumerated.”
Per Curiam ,
at - of - U.SApp.D.C., at 1059 of 580 F.2d (emphasis added). The first error in this statement is to include the separate and
special
provision contained in Art. IV, § 3, cl. 2 with the
general
enumeration of powers set forth in Art. I, § 8. The difference in composition and location of these two sections indicated a difference in purpose and intent. The Constitution in Art. IV does “[state] the particular matter of concern,
i. e.:
the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . .” It has long been recognized that
expressly
conferring this power on Congress implies an exclusion of all other authority over the property which could interfere with this right or obstruct its exercise.”
Wisconsin Cent. R.R. Co. v. Price County,
133 U.S. 496, 504 , 10 S.Ct. 341 , 33 L.Ed. 687 (1890);
Van Brocklin v. State of Tennessee,
117 U.S. 151, 167-168 , 6 S.Ct. 670 , 29 L.Ed. 845 (1886). The specific grant of power to Congress implicitly operates to deny that the power vests elsewhere.
United States v. MacCollom,
426 U.S. 317, 321 , 96 S.Ct. 2086 , 48 L.Ed.2d 666 (1976);
Passenger Corp. v. Passengers Assn.,
414 U.S. 453, 458 , 94 S.Ct. 690 , 38 L.Ed.2d 646 (1974);
T.I.M.E. v. United States,
359 U.S. 464, 471 , 79 S.Ct. 904 , 3 L.Ed.2d 952 (1959);
Botany Worsted Mills v. United States,
278 U.S. 282, 289 , 49 S.Ct. 129 , 73 L.Ed. 379 (1929).
The second argument also inaccurately analyzes Art. IV. It is too narrow a view of the property disposal clause to say that it is found in Art. IV, which deals with state-
*1078
federal and state-state relationships, and to conclude therefrom that the whole provision must be considered solely as distributing power between the state and federal governments rather than among the three branches of the federal government. Such argument ignores the fact that the Constitutional Convention went further and specifically designated which of the three departments was to exercise the power to dispose of United States property, to-wit: “The Congress . . .’’As previously noted, the power is essentially legislative and the “Power” to exercise it was placed in the Congress, where the Constitution placed other general and specific legislative authority.
It is also significant that the Constitution in Art. IV also placed the power in “The Congress” to enact general laws to implement the full faith and credit clause and to admit new states. The designation of Congress to exercise these powers cannot be blandly dismissed as though the Constitution also left these
powers
in the air so that the President could exercise them if he so desired. Would anyone suggest that the President by treaty can admit new states?
The location of Art. IV, § 3, as indicated by prior discussion, was principally a function of the Framers’ concern with the claims of particular states to territory granted in their original charters. .This was inextricably related to state-state and federal-state relations but it also directly involved the separation of powers between the Congress and the President; and insofar as United States versus States’ “claims” were concerned, the Judiciary were also very much involved. This great concern with disposition of territory and the claims thereto caused Section 3 to be placed in Article IV, but the language of the clause— which also addresses
property,
which did not figure as importantly in the Framers’ expressed concern relative to the grants under Royal charters, should not be narrowed as a result of its mere placement. The language of the clause is unequivocal: “The Congress
shall
have Power to dispose of Property belonging to the United States.”
This indicates that
exclusivity
of the powers in Art. IV, § 3, cl. 2, is vested in the
Congress
because if the President and the Senate, in the absence of any specific grant to that effect, were construed to possess the power, the Congress would thereby be excluded in many instances from exercising the power and the mandatory (shall) grant of the power to the Congress would be negated. It is recognized that some of the powers vested in Congress by Art. I, § 8 have been the subjects of treaties and that the mandatory character of that section may thereby have been obviated to some extent. That section, however, contains a great many designated powers covering a wide spectrum of legislative activity and it is recognizable that treaties might properly involve the same subjects
in a non-legislative manner.
Art. IV, § 3, cl. 2, however, is very specific and limited. It refers only to territory and property (the claims also refer to territory and property). Thus, the specific nature and limited scope of the paragraph are reasons why the ratification procedure thus required should not be taken from Congress and obviated by self-executing treaties.
Such construction is also supported by the historical fact that the recognized intent of the Convention in this paragraph was to restrict the power to dispose of territory or property and this was the only place such intent is addressed. Had the convention intended to authorize the disposition of property as an incident of the treaty power, it would have been very easy to do so by merely inserting before the semi-colon in Art. IV, § 3, cl. 2: “(which may also be disposed of by treaty).” The fact that the disposition of
territory
clause was followed by a separate restriction of general import to the entire Constitution which critically implicated state-state and federal-state relations — while also implicating the distribution of powers among the three branches— should not cause the separate grant of broad power to dispose of territory and property to be construed narrowly.
*1079
The contention that the
placement
of the power with respect to property and territory in Art. IV is an indication of a limiting effect overlooks some other significant features of the content of the paragraph and its location. Art. IV is the first Article after the three first Articles which provided for the distribution of the powers of government between the Congress, the President, and the Judiciary. Art. IV is also the
last Article
in the Constitution that can be said to deal with the allocation of governmental powers: the remaining Articles provide for the manner of amendment (Art. V); recognize prior debts, provide for the supremacy of federal law and the oath of office (Art. VI); and provide for the manner of ratifying the Constitution (Art. VII). The Articles after IV are thus largely procedural and declaratory, and the Articles before IV are each
confined
to a separate department of government. Thus, Art. IV was the appropriate place,
after
those sections in Art. IV which placed certain limitations on the states, and before the
broad
guarantee by the whole
“United States”
of a Republican form of Government, for the Convention to make provision with respect to “Territory [and] other Property belonging to the United States” and further to add the very broad assurance applicable to all departments, the United States, and the States that
“nothing in this Constitution
” shall prejudice any claims of the United States or the states.
This is so because the Convention intended to restrict all three departments in some respect
and it would be contrary to the arrangement of the Articles to place such restriction in any of the first three Articles that were each devoted to a single department. Article IV, § 3 was the obvious place to insert its present contents and by such placement its obvious meaning was not restricted.
Art. IV covers four areas: (1) the disposition and regulation of United States territory; (2) the disposition and regulation of United States property; (3) claims of the United States; and (4) claims of any particular state. Actually these are all closely related. With respect to these areas of concern, the Convention provided that Congress should exercise the power to dispose and regulate territory and property, and then restricted the power so conferred by providing, in effect, that none of the powers conferred on the Congress, the President, or the Courts (“nothing in this Constitution”) shall be construed to prejudice “any claims of the United States or of any particular State.”
The claims so referred to were claims to “territory” in the West under Royal Charters which during the Convention were among the greatest concerns of some of the states. It is thus apparent that the most propitious place to restrict the power of the Congress, the President, and the Courts from dealing with this matter, was after the first three Articles and following the provision concerning Congress’ power to dispose and regulate territory and property. It would not have been appropriate to place the restrictive language of Art. IV, § 3, cl. 2, in any of the first three Articles, as that would have suggested that the limiting language of the clause had some special relation to one particular branch of the federal government rather than to all three branches. Placing the provision
after
those Articles, and after the territory and property provision, gives the limitation greater force and clarity.
16
Therefore, the location of the
*1080
territory and property clause in Art. IV does not in any way limit the effect of its plain language to confer those powers on Congress as it prescribes. Furthermore, coupling the regulatory and disposition powers over “Territory [and] other Property belonging to the United States,” because the regulatory power is so completely legislative, is indicative of an intent to refer to the disposition power also in its legislative context.
III. ESTABLISHED STATE DEPARTMENT PROCEDURES FOR INTERNATIONAL AGREEMENTS
In bypassing the House of Representatives, the pending agreement does not conform to established procedures of the Department of State. These have been codified, set forth, and designated as the “Circular 175 Procedure.” Department of State, 11 Foreign Affairs Manual § 700
et seq.
(Oct. 25, 1974).
In its Circular 175 Procedure, the Department of State recognizes four types of International Agreements: Treaties which may be ratified by the Senate where to do so would not
“contravene the
United States Constitution . . . ”
(Id.,
§ 721.2(a), emphasis added). The Procedure also recognizes three types of agreements
other than
treaties:
(1)
Agreements Pursuant to Treaty
The President may conclude an international agreement pursuant to a treaty brought into force with the advice and consent of the Senate,
whose provisions constitute authorization for the agreement by the Executive without subsequent action by the
Congress;
(2)
Agreements Pursuant to Legislation
The President may conclude an international agreement on the basis of existing legislation or
subject to legislation to be enacted by the
Congress; and
(3)
Agreements Pursuant to the Constitutional Authority of the President
The President may conclude an international agreement on any subject within his constitutional authority so long as the agreement is not inconsistent with legislation enacted by the Congress
in the exercise of its constitutional authority.
Department of State, 11 Foreign Affairs Manual § 721.2(a) (Oct. 25, 1974) (emphasis added).
The Circular 175 Procedure also provides in the “Considerations for Selecting Among Constitutionally Authorized Procedures” for international agreements that consideration shall be given to:
c. Whether the agreement can be given effect without the enactment of subsequent legislation by the Congress;
d. Past U.S. practice as to similar agreements.
(Id.,
§ 721.3). Following these guidelines established by the Department of State, it is obvious that those portions of the treaty providing for the transfer of property to Panama are in effect outside the treaty power. This follows because the United States Constitution requires the additional approval of the House of Representatives, or the reference to the necessity for the enactment of subsequent legislation by Congress, because Art. IV, § 3, cl. 2 provides that “The
Congress
shall have Power to dispose of . Property belonging to the United States . . ..” (emphasis added). No party to this case questions that the treaty in its present form seeks to dispose of property belonging to the United States without approval by Congress.
17
*1081
This is true both as to the right to act as sovereign in the territory and as to our actual ownership of soil and fixtures which constitute property. The instant Panama Canal Treaty, insofar as it purports to dispose of the Canal territory and property, thus includes provisions of the second type, section 721.2(a)2,
supra,
which the State Department procedure correctly interprets the Constitution to provide that:
The President may conclude . . . subject to legislation to be enacted by the Congress .
Thus, the property disposition portion of the treaty under the Constitution constitutes a severable international agreement that cannot constitutionally come into force unless the entire “Congress” approves that transfer.
Obviously Congress may not be required to approve other parts of the treaty. It should also be recognized that attempting to bypass the House of Representatives with the scheme which is framed as a “self-executing treaty” ignores that part of the Department of State Procedure which states that “[p]ast U.S. practice as to similar agreements” shall be followed.
Id.
§ 721.3d. And, lest the
Per Curiam
opinion insist that its attempt to distinguish “executive agreements” was successful and authorizes the treaty procedure presently being followed, the “past practices” in Panama were in complete accordance with the views expressed in this opinion.
See
Part IV,
infra; but cf. Per Curiam
op., n.24.
IV. PAST U. S. PRACTICES INVOLVING SIMILAR AGREEMENTS WITH PANAMA
A.
Prior Panamanian Treaties
The procedure to be used in conveying United States property to Panama confronted President Eisenhower in 1955 in the Eisenhower-Remon Treaty with the Republic of Panama which,
inter alia,
disposed of some “property of the United States” in Colon and Panama City. That EisenhowerRemon Treaty provided in Art. V:
The United States of America agrees that,
subject to the enactment of legislation by the Congress,
there shall be conveyed to the Republic of Panama free of cost all the right, title and interest held by the United States of America or its agencies in and to certain lands and improvements in territory under the jurisdiction of the Republic of Panama [etc.] The lands and improvements referred to in the preceding sentence and the determinations by the United States of America respecting the same,
subject to the enactment of legislation by the Congress,
are designated and set forth in Item 2 of the Memorandum of Understandings Reached which bears the same date as this Treaty. The United States of America also agrees that,
subject to the enactment of legislation by the Congress,
there shall be conveyed to the Republic of Panama free of cost all its right, title and interest to the land and improvements in the area known as PAITILLA POINT and that effective with such conveyance the United States of America shall relinquish all the rights, power and authority granted to it in such area under the Convention signed November 18, 1903.
Treaty of Mutual Understanding and Cooperation Between the United States of America and the Republic of Panama, 6 U.S.T 2274, 2278-79 (Jan. 25, 1955) (emphasis added).
Thereafter,
Congress
enacted Public Law 85-223, 71 Stat. 509 (1957), which authorized such disposition.
18
This is the most sub
*1082
stantial example of United States past practices that exists. It also transferred land to Panama. The treaty itself called for
congressional
enactment. In my opinion, that same procedure is required here by the property disposition provision of the Constitution and by the Department of State’s Circular 175 Procedure.
The Committee Report asserts that Articles VI and VII of the Eisenhower-Remon Treaty of 1955 is an example of a self-executing treaty which authorizes the transfer of territory or property belonging the United States to other nations without a
“prior
Congressional act authorizing such transfer.” Committee Report at 68, 69 (emphasis added). Close examination does not support that conclusion. Naturally, enactment of an act
prior
to the treaty is not necessary — but the Committee Report suggests that an act prior to the
transfer
is not necessary; and the intent of the Committee Report, the Attorney General’s Opinion, and the wording of the present Treaty provide for the transfer of the property the instant the instruments of ratification are exchanged, thereby completely eliminating the House of Representatives from any constitutional role in the transfer of United States property. Art. V of the 1955 treaty belies the Senate’s and appellee’s position.
*1083
And the two provisions in Articles VI and VII only related to minor boundary matters. Art. VI
19
concerned the modification of a boundary line between the City of Colon and the Canal Zone; this article replaced Art. V of the Boundary Convention of September 2, 1914
20
and modified Art. VIII of the Hull-Alfaro Treaty, which had been signed on March 2, 1936.
21
Art. VII concerned a boundary modification near Manzanillo Island.
22
The asserted “self-executing” nature of Articles VI and VII of the 1955 treaty therefore do not provide precedential authority for disposing of the Panama Canal property without congressional approval. First, rectification of boundaries is a distinct matter from the disposition of the straggering amount of property in question here.
23
Boundary rectification ordinarily involves a dispute about which country owns the property; the subsequent agreement is more like a disposition of
claims
than of property, for the question of whether there even exists “United States property” is the entire matter in dispute.
24
Second, in comparing the amount of property allegedly disposed of by Articles VI
*1084
and VII to the amount being disposed in the present treaties, it is clear that the 1955 disposition, in relative terms, was even less than
de minimus.
Third, and most significantly,
Congress did approve Articles VI and VII in its 1957
statute.
25
Section 102(b) of the statute in its last line “authorized to be appropriated such amounts as may be required for the necessary replacement of property or facilities . . . conveyed or rendered excess as the result of the treaty or memorandum . . . .” Unlike Section 102(a) which only addressed the matters contained in Art. V of the treaty, Section 102(b) addressed all
three
articles — V, VI and VII — and the authorization of appropriations for replacement of conveyed property constituted approval by Congress of the content of Articles VI and VII.
However, even if Articles VI and VII did involve a disposition of property which Congress did not initially approve, it may be that those Articles were themselves unconstitutional. Even Congress’ silent acquiescence in that small disposition — assuming that is what may have happened temporarily — cannot alter the proper constitutional procedures mandated under Art. IV of the United States Constitution for the transfer by the Panama Canal treaty of United States property of the staggering value here being disposed of.
It is also convincing that in 1932, in another transfer of property to Panama, the Government considered it to be necessary to obtain prior specific congressional authorization even for a
minor
disposition of property from the Canal Zone to the Republic of Panama. Public Law No. 117, 47 Stat. 145 (May 3, 1932),
authorized
the Secretary of State to effect with the Republic of Panama a modification of the boundary line.
26
This slight alienation was not a
*1085
boundary correction but was in fact a cession of land made necessary by the requirements of international law with respect to embassies.
27
During World War II, there were discussions between Panama and the United States concerning disposition of bases and the transfer of waterworks and railroad lots. On May 18,1942, an agreement on the lease of defense sites was made between the two countries.
28
A more significant agreement was reached that same day,
29
which, based upon an exchange of notes, provided:
When the authority of the Congress of the United States shall have been obtained therefor,
the Government of the United States will transfer to the Government of the Republic of Panama free of cost all of its rights, title and interest in the system of sewers and waterworks in the cities of Panama and Colon.
59 Stat. at 1289 (emphasis added). The agreement also provided:
The President will seek the authority of the Congress of the United States
to transfer to the Republic of Panama free of cost all of its rights, title and interest to the lands belonging to or of which the Panama Railroad Company now has usufruct in the cities of Panama and Colon which are not currently or prospectively needed for the maintenance, operation, sanitation and protection of the Panama Canal, or of its auxiliary works, or for the operation of the Panama Railroad.
59 Stat. at 1290 (emphasis added). These agreements thus
recognized the constitutional necessity for Congress to approve the disposition of United States property.
On May 3, 1943, Congress enacted the legislation necessary to effectuate the transfer. Public Law No. 48, 57 Stat. 74 (May 3, 1943).
30
These are thus
not
examples of self-executing transfers by treaty.
*1086
Appellee also cites the “Convention of May 24,1950 [with the Republic of Panama] for Change in the Boundary and the Grant of Certain Corridors, 6 U.S.T. 462,” Appellee’s Supplemental Memorandum, March 17, 1978, at 3, as an example of a treaty which demonstrates “that under well established historical practice treaties with foreign countries have ceded rights to property of the United States,”
id.,
at 4. Reference is also made to Art. VI in the 1955 treaty with respect to “a small portion of the Colon and of the Colon corridor.”
Id.,
at 4.
The Convention of August 9,1950 is entitled “Colon Corridor and Certain Other Corridors Through the Canal Zone.” 6 U.S.T. 461. In Art. II thereof
the Republic of Panama transferred
certain tracts of land from the city of Colon to the Canal Zone as a boundary change and provided that said property would be incorporated “to form part of the Canal Zone in the same manner as though [said lands] had been included within the grants contained in the [boundary] convention of November 18, 1903 . . . ” 6 U.S.T. 465.
Thereafter in Art. Ill the United States transferred to the Republic of Panama
“jurisdiction
over the corridor” (emphasis added). This included the Colon corridor and another corridor through a small portion of the Canal Zone. The purpose of these transfers was so that “the city of Colon may enjoy direct means of land communication under Panamanian jurisdiction with other territory under jurisdiction of the Republic of Panama ...” 6 U.S.T. 465. This was something less than a transfer of “territory or property” because Art. V of the convention provided that the provisions previously referred to [conferring
jurisdiction
over corridors] “shall not affect the rights and obligations of either of the two high contracting parties under the treaties or other international agreements now in force between the two countries, nor be considered as a limitation, definition, restriction or restrictive interpretation of such rights and obligations . . . ” 6 U.S.T. 469.
The reference to prior “treaties or other international agreements now in force between the two countries . . . ” included reference to the treaty of November 18, 1903 which provides that the grants to the United States by the Republic of Panama should not “interfere with the rights of way over the public roads passing through the said Zone . . . unless said rights of way . . . shall conflict with rights . granted to the United States.” Art. VI, 33 Stat. 2235 . Thus, there being no conflict with United States’ rights, the convention of 1950 insofar as it related to highway corridors was dealing with a subject in which the Republic of Panama had
reserved
certain rights from the earliest treaty. Therefore, the recognition of Panama’s
“jurisdiction
” over a highway corri
*1087
dor, which the agreement provided the United States had a right to use, and which did not take any land out of the Canal Zone proper, is not an instance where property owned by the United States was disposed of.
From the inception of the 1903 treaty, the United States had never possessed the right to “interfere with the rights of way over the public roads passing through
the said zone” (Art. VI). The necessity for appellee to attempt to rely upon such unsupporting authority is an indication of the great weakness of his position.
The present case boils down to this: President Eisenhower in 1955 recognized his constitutional obligation to obtain authority from Congress to transfer a
depot
of the Panama Railroad to the Republic of Panama; but the appellee presently contends he does not need congressional approval to transfer the
entire Panama Railroad
and very substantial amounts of other property to the same party, and to reduce the entire interest of the United States in the colossal Panama Canal to a 21-year partnership with Panama solely in its operation.
With respect to prior treaties and agreements between the United States and Panama, the “past U.S. practice,” as demonstrated above, has recognized the necessity of approval by
Congress
and has sought such approval by legislation whenever
United States territory or property was conveyed to Panama.
Heretofore
every
transfer of United States’ property to Panama has been authorized in advance or subsequently ratified by action of
Congress.
31
The proposed agreement flies in the face of all these “past U.S. practices” and this violates established procedures of the State Department.
B.
Senate Debate in 1943 over Transfer of United States Property to Panama.
The Joint Resolution of 1943 which transferred the waterworks and some of the property of the Panama Railroad to Panama ( 57 Stat. 74 ) was the subject of debate in the Senate in which some Senators expressed the opinion that the disposition should have been made by Treaty, and not by resolution of both Houses
(see
88 Cong. Rec. 9320
et seq.).
The scope of Art. IV was discussed at considerable length. Senator Hiram Johnson of California argued that the resolution was dealing with “property of the United States” and that the Senate should “perform its constitutional function” by disposing of it by treaty. However, his views did not prevail against those pointing to the specific character of the language in Art. IV, § 3, cl. 2.
On December 3, 1942, Senator Connally of Texas, Chairman of the Senate Foreign Relations Committee, discussed the pending Senate Joint Resolution 162, which was to similar effect as the House Joint Resolution which eventually authorized the transfer. He quickly addressed the sentiment that a treaty should be the implementation instead of a Joint Resolution by the Congress:
Mr. President, I am and have been and in the future shall continue to be ardent in my maintenance of the integrity and the rights of the Senate of the United States in all its proper functions as a branch of the Government; but the matter covered by the joint resolution has to be passed by the Congress sooner or later in some form, for the simple reason that under the Constitution of the United States, Congress alone can vest title to property which belongs to the United States. The Constitution itself confers on Congress specific authority to transfer territory or lands belonging to the United States.
So, if we had a formal treaty before us and if it should be ratified, it still would be necessary for the Congress to pass an act vesting in the Republic of Panama the title to the particular tracts of land; because “the Congress” means both bodies.
The House of Representatives has a right to a voice as to whether any transfer of real estate or other property shall be made either under treaty or otherwise.
*1088
88 Cong.Rec. 9267 (Dec. 3, 1942) (emphasis added). Senator Vandenberg of Michigan then intervened to inquire why the disposition of the waterworks and some property owned by the Panama Railroad could not be by executive agreement. They became somewhat sidetracked, whereupon Senator O’Mahoney of Wyoming queried why the disposition should not be by treaty? In the course of responding, Senator Connally stated:
Mr. President, I referred earlier in my remarks to the constitutional requirement that Congress shall exercise consent in the case of the disposal of real estate. Article IV, section 3, of the Constitution, among other things, provides:
The Congress shall have authority to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.
So that,
in any event, it would be necessary to have congressional action even though there were a treaty. In this case it would be necessary to have congressional action parting with title to these properties.
88 Cong.Rec. 9269 (Dec. 3, 1942) (emphasis added). In response to a query from Senator Taft of Ohio, Senator Connally made the point that a treaty could be substituted for the joint resolution if there was subsequent enacting legislation:
Mr. TAFT. I am somewhat hazy on the subject of why an executive agreement should be confirmed by legislation instead of being made the subject of a treaty. I myself have had considerable difficulty in drawing the line. It does not seem to me that the mere fact that some legislation is necessary to implement this particular agreement necessarily excuses it from being made the subject of a treaty.
Mr. CONNALLY. As a legal proposition I think the Senator from Ohio is correct. The mere fact that legislation is required does not necessarily mean that we could not first, by means of a treaty, assume the obligations,
and then carry out the obligations by the enactment of legislation.
I will say very frankly to the Senator from Ohio — I do not think he was present awhile ago when we discussed that question — that the Senator from Texas is not prepared with the accuracy of a civil engineer to draw the boundary line between what can be done by executive agreement and what can be done by a treaty.
88 Cong.Rec. 9270 (Dec. 3, 1942). (Emphasis added).
The next day, Senator Johnson of California spoke against the resolution, as described above. Senator Tunnell responded:
There are different methods, apparently, by which questions of international moment are met. This is not a new question. Sometimes those who have objected to the course of the Executive have been more fortunate than those who are now making this objection. In this instance the Constitution specifically provides for this method. In article IV, section 3, second paragraph, I find this language:
The Congress shall have power to dispose of and make all needful rules and regulations respecting the Territory or other property belonging to the United States.
It seems to me that if any other method than that of transfer by Congress had been attempted, we should have been met by the objection that Congress was the only power by which this territory or this property could be disposed of.
There is no other method or authority to dispose of property of the Nation than that which is reposed in the Congress.
88 Cong.Rec. 9322 (Dec. 4, 1942) (emphasis added). The Joint Resolution passed 40 to 29. 88 Cong.Rec. 9320 (Dec. 4, 1942).
It cannot be said from this that the procedure there adopted by the President and
the Congress
to transfer property to Panama has the same effect as a binding judicial precedent. It must be recognized, however, that the Senate did understand the nature and importance of the issue and its constitutional — and political — ramifications; and
*1089
in an instance where United States property of much less value than is here involved was being transferred, the Senate did decide that the proper procedure called for legislative action of the
Congress.
In our review of past practices, it is also important that this was another case involving the transfer of land to Panama.
V. THE HISTORY OF THE TREATY CLAUSE IN THE CONSTITUTIONAL CONVENTION AND ITS RELATION TO THE DISPOSITION OF PROPERTY BELONGING TO THE UNITED STATES
Appellee contends that the Constitutional Convention
adopted a proposal that required two-thirds of the Senate to concur in all treaties,
including peace treaties involving cessions of territory. 2
Farrand,
supra,
at 544, 549 . . [which] demonstrate^] that the framers of the Constitution contemplated the transfer of United States territory and property by treaty.
Appellee Br. at 11 (emphasis added). No such proposal was finally adopted. On September 4, 1787 the working draft of the proposed Constitution provided:
Sect. 4. The President by and with the advice and consent of the Senate, shall have power to make treaties But no Treaty shall be made without the consent of two-thirds of the Members present.
2 Farrand, The Records of the Federal Convention of 1787, 495 (rev. ed. 1929) (hereafter “Farrand”).
On September 7, the words “(except Treaties of Peace)” were added after the word “Treaty.”
32
2 Farrand, 533. Under this amendment, a
majority
vote of the Senate could have ratified a
peace treaty.
Thereupon a motion was made to add the following amendment:
But no Treaty of Peace shall be entered into, whereby the United States shall be deprived of any of their present Territory or rights without the concurrence of two-thirds of the members of the Senate present.
2 Farrand, 534. This amendment was
defeated
by adjournment, 2 Farrand 534, 543, and was never offered again.
The very next day, as the first order of business, the convention
struck
the previously adopted amendment,
i. e.,
“(except Treaties of Peace)” from then section 4 by a vote of eight states to three. 2 Farrand 544, 548-549. Thus, even that clause never became part of the treaty provision.
Thus, the convention eventually rejected the proposal that peace treaties should be ratified by a majority vote of the Senate, and by adjourning, it also rejected the proposal to add a specific provision that treaties of peace
transferring United States Territory or rights
would require a two-thirds vote if other peace treaties could be ratified by majority vote. Appellee’s brief and argument overlook these facts.
The mere offering, consideration, and rejection of the amendment as to United States “territory and rights” does not support appellee’s claim “that the framers of the Constitution contemplated
the transfer of United States territory and property by
treaty.”
33
Appellee Br. at 11 (emphasis added). Had the amendment with respect to the “territory and rights” become part of the treaty clause of the Constitution, appellee’s interpretation would have been correct, but that amendment, contrary to appellee’s representation, never even reached the voting stage. 2 Farrand, 534, 543. Thus, the convention proceedings with respect to that amendment do not support
*1090
appellee’s present contention, and the temporary inclusion of peace treaties does not support an interpretation that the naked treaty power which was eventually voted included the right to cede territory. Even if a “Peace Treaty” could, they are a peculiar breed with their own characteristics, and insofar as they cede property they are usually recognizing that the property has already passed from their domain. The conclusive answer to that argument, however, is that we are not here concerned with a “Peace Treaty.”
Doubtlessly, the two members who offered the amendment with respect to “territory and rights” were of the view that treaties could transfer territory and rights of the United States (to be) and of the particular states; but these amendments were defeated and there is no indication that the movers (Williamson and Spaight, 2 Farrand 543) took cognizance of the provision of the present Art. IV, § 3, cl. 2, which at that time was in its present form, except for its reference to “Legislature” which was later changed to “Congress” (2 Farrand 459, 466).
In this matter, however, we should be guided more by the
action
of the Convention as a whole and by the interpretation evident from
rejection
of the proposed amendment by a substantial majority of states. In this inquiry therejs nothing in the convention proceedings to refute the conclusion that the majority rejected the amendment because it interpreted the then-existing broader language that became Art. IV, § 3, cl. 2 as providing better protection for their interests through
Congress
than would have been possible through the defeated addendum to the treaty clause. In believing they had guaranteed that no territory or property belonging to the United States could be disposed of except by
the Congress
the Framers of the Constitution were concerned lest the President and 10 Senators (two-thirds of a bare quorum), possibly from only 5 states, would be empowered to dispose of United States territory and property. This was a real concern because the Senators under the Constitution were to be “chosen by the [state] Legislature” and were to be representatives of the states, whereas the “House of Representatives [was] . . . chosen . by the People,” and was considered to be their direct representatives — much like the House of Commons in England. In those days transportation from the outlying states of the newly formed nation was also slow, uncertain and difficult and there was always the possibility that the Senate might be meeting with short quorums. Hence the Framers were concerned that the assured broader representation of the House should be reflected whenever the President sought to dispose of Government territory or property particularly to foreign powers. The House of Representatives was also apportioned equally throughout the United States on the basis of population. Despite the Seventeenth Amendment providing for direct election of Senators, they are still elected from states without any apportionment based on population and the language of Art. IV, § 3, cl. 2, has not been changed or altered in any respect. Therefore, the territorial and property disposition provision retains the same intent as when it was originally composed by Gouverneur Morris and adopted by the Constitutional Convention — 11 states to 1.
Any member who relied on what became the property disposition clause of Art. IV would have voted for adjournment on September 7 against the territorial amendment discussed above, and would have had no reluctance to vote for the Constitution in the form in which it was submitted with Art. IV, § 3, cl. 2 as at present.
34
*1091
The majority also refers to the history of the state ratifying conventions, and concludes therefrom that the states — in addition to the Framers — were satisfied that a two-thirds requirement in the Senate, rather than full congressional approval, served, as an adequate check on the alienation of United States territory.
Such a broad conclusion cannot be drawn from the history of the state conventions. Typical of the majority’s position is reliance on a proposed amendment at the Virginia ratifying convention, which read in full as follows:
[N]o commercial treaty shall be ratified without the concurrence of two thirds of the whole number of the members of the Senate; and no treaty ceding, contracting, restraining, or suspending, the territorial rights or claims of the United States, or any of them, or their, or any of their rights or claims to fishing in the American seas, or navigating the American rivers, shall be made, but in cases of the most urgent and extreme necessity; nor shall any such treaty be ratified without the concurrence of three fourths of the whole number of the members of both houses respectively.
3 Elliot’s Debates in the Several State Conventions on the Adoption of the Federal Convention 660 (1907). Irrespective of the statements of the participants of the Virginia convention, who may well have been laboring under the mistaken pretense that Art. VI was not operative in this area or who may not have even thought about that section at all, a wholly permissible conclusion to be drawn from the
rejection
of this amendment was that the provision in Art. IV for a vote of the
full Congress
for disposition of territory or property was an adequate safeguard. The statements of parties who suggested such amendments, in their honest but mistaken fear that the treaty power alone allowed the disposition of territory or property in circumstances such as are here present, and then had their amendment defeated, do not constitute an authoritative interpretation of the scope of Art. II.
VI. ELEVEN PRIOR TREATIES
Appellee’s brief and the Committee Report
35
both refer to eleven treaties supplied by the Department of State and argue that such treaties were couched in self-executing terms and constitute examples of the transfer of United States territory or property to other nations, and in some instances to individuals,
without a prior congressional act authorizing such transfer.
It is further asserted that these instances support the contention that Art. IV, § 3, cl. 2 of the Constitution permits the President through a treaty to dispose of property belonging to the United States without approval of “the Congress.”
36
We examine each of these treaties for verification of the asserted interpretation; and we find little or no support therefor.
A.
Indian Treaties
1.
The Treaty with the Cherokee Nation of December 29, 1835 ( 78 Stat. 478 ).
— This treaty was
preceded
by the Act of May 28, 1830, by which Congress authorized the exchange of western lands for the Cherokee’s eastern lands in connection with their removal to lands west of the Mississippi River. However, the 1835 treaty, in some re
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speets, exceeded the statutory authorization as to the lands that were to be transferred, and citizens who took title to some lands subsequently transferred from the Indians were subjected to attacks upon their title.
Holden v. Joy,
84 U.S. (17 Wall.) 211 , 21 L.Ed. 523 (1872), involved such a controversy. The Court held, in effect, that those who received land from the Indians acquired good title because Congress, by appropriating some four-and-one-half million dollars to carry out the treaty, had in effect ratified the
ultra vires
acts of the treaty negotiators. In so ruling, the Court’s opinion recognized the issue as to whether a treaty could convey lands belonging to the United States, but then stated;
It is not necessary to decide the question in this case, [whether the treaty conveyed title without Congressional approval] as the treaty in question has been fully carried into effect, and its provisions have been repeatedly recognized by Congress as valid.
84 U.S. (17 Wall.) at 247
37
Thus, far from holding that a treaty can transfer property
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belonging to the United States without Congress, the ease recognizes the requirement of congressional authorization and holds that when land is transferred in a
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treaty in excess of statutory authorization, the transfer may be legalized by a subsequent act of “Congress” which in some affirmative manner indicates approval of the otherwise
ultra vires
act.
2.
The Treaty of October 2, 1863 with the Red Lake and Pembina Bands of Chippewa Indians ( 13 Stat. 667 ).
— Appellee points to Art. IX of this treaty signed by President Lincoln as an alleged transfer of property not consented to by Congress. That article provided: “there shall be
set apart from the tract hereby ceded
[to the United States by the Bands of Chippewa Indians] a reservation of (640) six hundred and forty acres near the mouth of Thief River for the Chief ‘Moose Dung’ ...” The validity of the reservation to Chief Moose Dung was involved in
Jones v. Meehan,
175 U.S. 1 , 20 S.Ct. 1 , 44 L.Ed. 49 (1899),
38
which considered the validity of a subsequent lease made by one who inherited from the chief. Appellee cites the court’s decision upholding the lease for the rule that property of the United States may be transferred to individuals by treaty between the United States and Indian tribes
without any act of Congress
or any patent from the President. When the facts of this Indian treaty are analyzed, it is clear, however, that the authority of the case is limited to reservations of land made in treaties
between
the United States and Indian tribes, which were treated as being akin to nations.
See
following discussion of the Indian treaties.
3.
Summary.
— The early treaties with Indian tribes are
sui generis
as treaties. They are not treaties in the ordinary sense of the word as all have recognized since Congress in 1871 enacted a law prohibiting any “contract by treaty” with any Indian tribe or nations:
That hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty:
Provided, further,
That nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe.
Act of March 3, 1871, 16 Stat. 566 . Had Indian treaties been true treaties in the
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constitutional sense
Congress
could not have prohibited the President from so contracting by treaty. While the Act took the form of providing that Indian tribes shall not be “acknowledged or recognized” as “independent,” the statute clearly prohibited the President from negotiating treaties with any Indian tribe that was “independent.” The Act was thus in form a clear restriction on the treaty power, but actually it recognized that the Indian treaties were something different than the treaties referred to in the Constitution.
They have special features that generally make them inapplicable as authority that a treaty can dispose of other types of United States property without an Act of Congress. This is true because generally the subject of the Indian treaties was land owned and occupied by the Indians, which the United States was buying or acquiring. The treaty “reserved” some of the land for the Indians. Thus, property of the United States was not
disposed
of by the treaty.
Attorney General Taney in an opinion on September 20,1833 stated: “These reservations [of Indian land in treaties] are
excepted out of the grant made by the treaty and did not therefor pass by it.
Consequently the title remains
as it was before
the treaty, that is to say
the lands reserved are still held under the original title.”
175 U.S. at 12 , 20 S.Ct. at 5 . Mr. Justice Nelson in
Gaines v. Michelson,
50 U.S. (9 How.) 356 , 13 L.Ed. 172 (1850), pointed out that in such transactions, “it was so much carved out of the territory ceded, and remained to the Indian occupant,
as he had never parted with it.
He [the Indian] holds strictly speaking
not under the treaty
of cession but under his original title confirmed by the government in the act of agreeing to the reservation.” 50 U.S. (9 How.) at 365 .
In the
Per Curiam
opinion a statement in
Jones v. Meehan, supra,
175 U.S. at 12-14 , 20 S.Ct. 1 , is cited as authority that the Taney opinion and the decision in
Gaines v. Michelson, supra,
were “irreconcilable with later Supreme Court opinions . .
(Per Curiam,
n. 19). This may be explained by virtue of a change in the statute after
Jones v. Meehan, supra,
which eliminated the prohibition against individuals purchasing or leasing from any individual Indian. Act of June 30, 1834, c. 161, § 12, 4 Stat. 730 .
But whether the treaty confirmed the Indian right or granted a new right is not dispositive of the question as to whether there was a disposition of territory or property belonging to the United States. Those treaties dwelt with territory and property and in doing so they dwelt with sovereignty over the territory and the right to individual patches of soil, as Chief Justice Marshall noted in
Johnson v. McIntosh,
21 U.S. (8 Wheat.) 543 , 5 L.Ed. 681 (1823). They also in some instances involved disputed claims to both territory and soil. In settling on the tribes the reserved territory the sovereign rights of the respective parties were involved, but in the “reservation” of specific acreage of
soil
to individual Indians, different claims were involved and this phase of the agreements was more concerned with what might be termed “property.” It is clear that at one time such “reservations” were considered as a recognition of land already owned by the Indians. This would be particularly true where the Indian at the time actually occupied the soil. In any event even
Jones v. Meehan, supra,
recognized that the land reserved to Chief Moose Dung on his death passed to his eldest son “by the laws, customs, and usages of the tribe . . What the
Per Curiam
opinion, and many other opinions in this field fail to recognize is that the individual Indians acquired title by virtue of the
treaty
and that it is not completely correct to say that the United States granted the title. The treaties were the act of two governments. The Indians as possessors had far the greater claim to the extent that they actually occupied the soil and the grantors in the treaty were not solely the United States but included both signatories. And insofar as the right to the soil was concerned more came from the Indians than from the United States. It would hardly be correct to consider that soil actually occupied by an Indian for centuries was property belonging to the United States. The
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United States generally recognized the rights of such possessors, and though Indian
claims
to broad territory were only recognized as a right of occupancy, the reservation of individual tracts was on a different footing and generally by one device or another were found to be vested in fee simple in the actual Indian occupant.
Jones v. Meehan, supra,
175 U.S. at 32 , 20 S.Ct. 1 , is a good example.
By way of conclusion on all these Indian treaties, in short, I deny that recognizing the ancestral right of Chief Moose Dung to pitch his tepee by the waters of Thief River is sufficient legal authority to give away the entire Panama Canal without benefit of Congress. Claiming support from such decision indicates the weakness of appellee’s case because the character of the two treaties, the relationship of the signatories, the consideration involved, the nature of our interest or claim to the property involved and our relationships to them are all different in material respects.
Therefore, the treaties with the Cherokees, the Chippewa Indians, and the transfer to Chief Moose Dung do
not
constitute authority that the Panama Canal Zone property of the United States may be transferred to Panama without the approval of
the Congress.
The same general
modus operandi
was followed in other Indian treaties.
This also disposes of the decision in
Francis v. Francis,
203 U.S. 233 , 27 S.Ct. 129 , 51 L.Ed. 165 (1906), cited in the
Per Curiam
opinion. That is another Indian treaty case which interpreted one of the usual “reservations” that the Indians customarily made when they transferred some of their lands to the United States by treaty. As in the other Indian treaty cases, the first Justice Harlan’s opinion did not overturn the Chancellor’s ruling that the named Indian “and his heirs” obtained a fee simple estate in Indian lands which were “reserved [and] did
not
pass to the United States by the Treaty” (emphasis added) because under a rule of property in Michigan where the lands were located “[t]he term
reservation
was equivalent to an absolute grant.” The result in that respect was not disturbed. Thus, again the peculiarities of a reservation by Indians of their own lands in a joint treaty with the United States, belies the fact that the title passed by the treaty was to property (soil) that actually belonged to the United States. A more accurate description of the actual situation would be that the Indians never relinquished their claim and

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/358556. Public record. Not legal advice.