Chapter 5

THE LAW OF TREATIES AND OTHER

INTERNATIONAL AGREEMENTS

Conclusion and Entry into Force

Extent of the Treaty Power

On July 23, 1977, Secretary of State Cyrus Vance wrote Judge Griffin Bell, Attorney General of the Department of Justice, requesting a "formal opinion on the constitutionality of the transfer by treaty alone of property belonging to the United States. . . ." Secretary Vance indicated that "various Members of the Congress are questioning the constitutionality of such a transfer on the following basis:

They maintain that Article IV, section 3 of the Constitution grants to the Congress the exclusive power to dispose of property belonging to the United States, and thus any transfer of U.S. property to Panama, as part of a new treaty relationship, would require legislation as a matter of constitutional law.

Dept. of State File No. P77 0183–1355.

Secretary Vance indicated that it would be extremely useful to have the Attorney General's opinion for insertion into the record of Senator James Allen's Judiciary Subcommittee on Separation of Powers.

On August 11, 1977, Attorney General Bell responded with the following opinion:

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

I.

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

At the same time, the Constitution gives Congress a number of specific powers that bear upon matters commonly subjected to the treaty power. I need mention but a few: pursuant to Article I, section 8, Congress has power to regulate foreign trade, to provide for the protection of rights in useful inventions, to make rules governing captures on land and water, to establish a uniform rule for naturalization, and to punish offenses against the law of nations; and, of course, pursuant to Article IV, section 3, Congress has power to dispose of territory or property belonging to the United States. Moreover, there is authority for the proposition that Congress has general power, quite apart from these specific powers, to enact legislation relating to foreign affairs. United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936); Perez v. Brownell, 356 U.S. 44 (1958).

A question that arose very early in our constitutional history was whether the existence of these congressional powers limits the power of the President and the Senate to make law by treaty.' If a treaty touches a matter that Congress has power to regulate, can the treaty be given the force and effect of law, in and of itself, if Congress has not enacted legislation putting it into effect? The question you raise is one aspect of that general question.

II.

I shall make two observations with respect to the general issue. First, from the earliest days of the Republic the decisions of the Supreme Court have provided convincing support for the proposition that a treaty, unaided by an act of Congress, has the force and effect of law even if it touches a matter that is within the legislative jurisdiction of Congress. Indeed, the Court has held that a treaty, of its own force, may supplant prior acts of Congress to the extent that its enforcement may require that result. Cook v. United States, 288 U.S. 102 (1933).

The seminal case, United States v. The Schooner Peggy, 1 Cranch 103 (1801), was decided in an opinion by Chief Justice Marshall. During the undeclared naval war with France, Congress enacted a statute that authorized the President to grant commissions to public vessels, with instructions that they should seize armed French vessels on the high seas, bring them to our ports, and subject them to condemnation in the courts of the United States. Act of July 9, 1798, c. LXVIII, 1 Stat. 573. In 1800 the American ship Trumbull, sailing under a commission issued pursuant to the statute, seized an armed French vessel, the schooner Peggy, and brought her to port. A proceeding was then instituted against the Peggy; and after a sentence of condemnation was entered in the court below, an appeal was taken to the Supreme Court.

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

Thus, when the case of the Peggy [United States v. Schooner Peggy, 5 U.S. 105 (1801)] came before the Court, the question was

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

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

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

In the years that followed this decision the Supreme Court gave "self-executing" effect to numerous treaties that disposed of matters that Congress had power to regulate. See, e.g., Hijo v. United States, 194 U.S. 315, 323-24 (1904) (claims against the United States); Cook v. United States, 288 U.S. 102, 118-19 (1933) (customs inspections); Bacardi v. Domenach, 311 U.S. 150, 161 (1940) (trademarks); see generally Henkin, supra, note 1, at 149. Today, as a result of these and other decisions, it could not be successfully maintained, as a general proposition, that the treaty power stops where the power of Congress begins. On the contrary, the Court has said. that the treaty power, operating of itself and without the aid of congressional legislation, extends to all proper subjects for negotiation between our Nation and others. Asakura v. City of Seattle, 265 U.S. 332 (1924). The lesson of history is that these "proper subjects" include many that are within the legislative jurisdiction of Congress. My second observation is related to the first. I have suggested that the two powers the power of Congress to legislate and the power of the President and the Senate to make "self-executing" treaties-may overlap. I do not mean to suggest that they are coextensive. They are both created by the Constitution, and they are both subject to the fundamental limitations that are imposed thereunder; but the limitations that apply to the one do not necessarily apply to the other. The treaty power may extend to subjects that are beyond the legislative jurisdiction of Congress. Missouri v. Holland, 252 U.S. 416 (1920). Similarly, the President and the Senate may be powerless to accomplish by treaty what the Congress can accomplish by

statute.

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I shall elaborate briefly upon the latter point. Some lower courts 3 and many serious students of the law have expressed the view that certain matters are subject to regulation by Congress only; and that a treaty, if it purports to deal with such a matter, can be given effect only to the extent that it may be authorized or implemented by

statute. The two matters that are frequently mentioned in this regard are the raising of revenue and the appropriation of funds. The Constitution provides that "all" bills for raising revenue "shall" originate in the House (Article I, section 7, clause 1), and, further, that "no" money shall be drawn from the Treasury except in consequence of "appropriations" made by law (Article I, section 9, clause 7). In the face of these provisions the opinion expressed by some is that a treaty purporting to require the establishment or alteration of a revenue measure, or a treaty purporting to require an appropriation of funds, could not be effective, as a matter of domestic law, in the absence of statutory authorization or implementation. I find it unnecessary to deal with that issue in order to answer the question you have put to me.

I now turn to the question at hand.

III.

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

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

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

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

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

The language of Article IV, insofar as it confers upon Congress the power of disposition, is identical to the language of Article I, which confers upon Congress numerous powers that may be exercised by the President and the Senate through self-executing treaties. Article IV says that Congress "shall have power" to dispose of territory or property belonging to the United States, just as Article I says that Congress "shall have power" to regulate foreign commerce, to make rules governing captures on land and water, and so forth. Article IV goes on to say that Congress shall have power to make "all" needful rules and regulations respecting territory or property. As in the case of Article I, however, Article IV does not say that the powers it confers the power to dispose of territory or property, and the power to make rules and regulations respecting it-shall reside in Congress alone.

The record of the proceedings during the Constitutional Convention supports the interpretation that is suggested by the language of the Constitution itself. The territory and property clause of Article IV was adopted during a general discussion of the role that the central government should play in connection with the territorial claims that had been asserted by the several States with respect to the western lands. In the course of the discussion there was no suggestion whatever that the purpose or effect of the clause was to give Congress exclusive power to authorize or implement international agreements disposing of territory or property. See 2 M. Farrand, The Records of the Federal Convention of 1787 457-59, 461-66 (rev'd ed. 1937) [hereinafter cited as Farrand].

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

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

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