Hawaiian Kingdom - Dept of Justice Legal Opinion, 1988

United States Department of Justice,
Legal Issues Raised by Proposed
Presidential Proclamation to Extend the Territorial Sea,
Opinions of the Office of Legal Counsel,
vol. 12, p. 238-263, October 4, 1988

Excerpts commenting on the annexation of Hawai’i
taken from pp. 250 – 252

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C. Congress’ Power to Assert Sovereignty over the Territorial Sea

We next consider whether H.R. 5069, which provides for the establishment of a territorial sea twelve miles wide, is within the constitutional power of Congress. H.R. 5069 states, “The sovereignty of the United States exists in accordance with international law over all areas that are part of the territorial sea of the United States.” H.R. 5069, 100^th Cong., 2^nd Sess., §101(b) (1988). Congress, however, has never asserted jurisdiction or sovereignty over the territorial sea on behalf of the United States.28 Because the President––not the Congress––has the constitutional authority to act as the representative of the United States in foreign affairs, Congress may proclaim jurisdiction or sovereignty over the territorial sea for international law purposes only if it possesses a specific constitutional power therefor.29

We have identified two instances in which the United States acquired territory by legislative action. In 1845, the United States annexed Texas by joint resolution. Joint Res. 8, 5 Stat. 797 (1845). Several earlier proposals to acquire Texas after it gained its independence from Mexico in 1836 had failed. In particular, in 1844 the Senate rejected an annexation treaty negotiated with Texas by President Tyler. 13 Cong. Globe, 28^th Cong., 1^st Sess. 652 (1844). Congress then considered a proposal to annex Texas by joint resolution of Congress. Opponents of the measure contended that the United States could only annex territory by treaty. See e.g., 14 Cong. Globe, 28^th Cong., 2^nd Sess. 247 (1845) (statement of Sen. Crittenden). Supporters of the measure relied on Congress’ power under Article IV, Section 3 of the Constitution to admit new states into the nation. See, e.g., id. at 246 (statement of Sen. Walker); id. at 297-98 (statement of Sen. Woodbury); id. at 334-36 (statement of Sen. McDuffie). These legislators emphasized that Texas was to enter the nation as a state, and that this situation was therefore distinguishable from prior instances in which the United States acquired land by treaty and subsequently governed it as territories. Congress’ power to admit new states, it was argued, was the basis of constitutional power to affect the annexation. Congress approved the joint resolution, President Polk signed the measure, and Texas consented to the annexation in 1845.

The United States also annexed Hawaii by joint resolution in 1898. Joint Res. 55, 30 Stat. 750 (1898). Again, the Senate had already rejected an annexation treaty, this one negotiated by President McKinley with Hawaii. And again, Congress then considered a measure to annex the land by joint resolution. Indeed, Congress acted in explicit reliance on the procedure followed for the acquisition of Texas. As the Senate Foreign Relations Committee report announced, “[t]he joint resolution for the annexation of Hawaii to the United States…brings that subject within reach of the legislative power of Congress under the precedent that was established in the annexation of Texas.” S. Rep. No. 681, 55^th Cong., 2^nd Sess. 1 (1898). This argument, however, neglected one significant nuance: Hawaii was not being acquired as a state. Because the joint resolution annexing Texas relied on Congress’ power to admit new states, “the method of annexing Texas did not constitute a proper precedent for the annexation of a land and people to be retained as a possession or in a territorial condition.” Andrew C. McLaughlin, A Constitutional History of the United States 504 (1936). Opponents of the joint resolution stressed this distinction. See, e.g. 31 Cong. Rec. 5975 (1898) (statement of Rep. Ball).30 Moreover, as one constitutional scholar wrote:

The constitutionality of the annexation of Hawaii, by a simple legislative act, was strenuously contested at the time both in Congress and by the press. The right to annex by treaty was not denied, but it was denied that this might be done by a simple legislative act…Only by means of treaties, it was asserted, can the relations between States be governed, for a legislative act is necessarily without extraterritorial force––confined in its operation to the territory of the State by whose legislature it is enacted.

1 Westel Woodbury Willoughby, The Constitutional Law of the United States §239, at 427 (2^nd ed. 1929).

Notwithstanding these constitutional objections, Congress approved the joint resolution and President McKinley signed the measure in 1898. Nevertheless, whether this action demonstrates the constitutional power of Congress to acquire territory is certainly questionable. The stated justification for the joint resolution––the previous acquisition of Texas––simply ignores the reliance the 1845 Congress placed on its power to admit new states. It is therefore unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution. Accordingly, it is doubtful that the acquisition of Hawaii can serve as an appropriate precedent for a congressional assertion of sovereignty over an extended territorial sea.31

28 Congress has occasionally considered legislation to extend the territorial sea of the United States. E.g. H.J. Res. 308, 91^st Cong., 1^st Sess. (1969); S.J. Res. 136, 90^th Cong., 2^nd Sess. (1968); H.R. 10492, 88^th Cong.., 2^nd Sess. (1964). None of these bills had been enacted.

29 Congress has certain constitutional powers that can affect the claims of the United States over the seas. For example, Congress has the power to regulate foreign commerce, art. I, §8, cl. 3, the power to define and punish crimes committed on the high seas and offenses against international law, art. I, §8, cl. 10, and the power to declare war, art. I, §8, cl. 11. Congress also exercises considerable authority over the territory of the United States. The Constitution authorizes Congress to admit new states, art. IV, §3, cl. 1, and to dispose of and regulate the property of the United States, art. IV, §3, cl. 2.

30 Representative Ball argued: “Advocates of the annexation of Texas rested their case upon the express power conferred upon Congress in the Constitution to admit new States. Opponents of the annexation of Texas contended that even that express power did not confer the right to admit States not carved from territory already belonging to the United States or some one of the States forming the Federal Credit Union. Whether, therefore, we subscribe to the one or the other school of thought in that matter, we can find no precedent to sustain the method here proposed for admitting foreign territory.” 31 Cong. Rec. 5975 (1898). He thus characterized the effort to annex Hawaii by joint resolution after the defeat of the treaty as “ a deliberate attempt to do unlawfully that which can not be lawfully done.” Id.

31 Additionally, Congress has authorized the extension of United States’ control to guano island discovered and occupied by citizens of the United States. The Guano Islands Act provided: “Whenever any citizen of the United States discovers a deposit of guano on any island, rock, or key, not within the lawful jurisdiction of any other government, and not occupied by the citizens of any other government, and takes peaceable possession thereof, and occupies the same, such island, rock, or key may, at the discretion of the President, be considered as appertaining to the United States.” 48 U.S.C. §1411. In Jones v. United States, 137 U.S. 202 (1890), the Supreme Court held that the statute was valid and that Navassa, a guano island claimed under that statute, “must be considered as appertaining to the United States.” Id. at 224. The Guano Islands Act does not appear to be an explicit claim of territory by Congress.