    Legal Issues Raised by Proposed Presidential Proclamation To
                      Extend the Territorial Sea

The President has the authority to issue a proclamation extending the jurisdiction of the United States
  over the territorial sea from three to twelve miles out.
The President also has the authority to assert the United States’s sovereignty over the extended ter­
  ritorial sea, although most such claims in the nation’s history have been executed by treaty.
There is a serious question whether Congress has the authority either to assert jurisdiction over an
  expanded territorial sea for purposes o f international law or to assert the United States’s sover­
  eignty over it.
The domestic law effect on federal statutes of the extension of the territorial sea is to be determined
  by examining Congress’s intent in enacting each affected statute.
The extension of the territorial sea will not affect the Coastal Zone Management Act.
                                                                                           October 4, 1988
                      M e m o r a n d u m O p in io n f o r t h e L e g a l A d v is e r
                                        D epa rtm en t o f S tate

                          Introduction and Summary
   This responds to the requests, made by your Office and an inter-agency work­
ing group, for analysis of the constitutional and statutory questions raised by a
proposed presidential proclamation to extend the territorial sea of the United
States from its present breadth of three miles to twelve miles.1 In particular, we
have been asked to address the following questions: First, does the President have
the authority to declare, by presidential proclamation, the proposed extension?
Second, assuming the President does have the authority, what effect would such
a proclamation have on domestic legislation, such as the Coastal Zone Manage­
ment Act? Third, can the President limit the effect the proclamation will have on
domestic legislation? We have also been asked to comment on H.R. 5069, a bill
that would extend the territorial sea by legislation.
   We conclude that the President can extend the territorial sea from three to
twelve miles by proclamation. While the most legally secure method of doing so
would be by entering into a treaty with other nations on this issue, we believe
that the President may extend the territorial sea by virtue of his constitutional role
   1 Letter for Douglas W. Kmiec, Acting Assistant Attorney General, Office of Legal Counsel, from Michael J.
Matheson, Acting Legal Adviser (Aug. 15,1988). See also Memorandum for Michael A. Carvin, Deputy Assistant
Attorney General, Office of Legal Counsel, from Kevin R. Jones, Deputy Assistant Attorney General, Office of
Legal Policy (June 20, 1988) (raising similar questions on behalf of the inter-agency working group).

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as the representative of the United States in foreign relations. The President’s for­
eign relations authority under the Constitution clearly permits his unilateral as­
sertion on behalf of the United States of jurisdiction over the territorial sea.
Whether the President may individually assert sovereignty over the territorial sea
is open to some question, although on the basis of several long-settled, historical
examples of Presidents unilaterally claiming territory in this fashion, we believe
that he may. Finally, we conclude that while Congress may establish state bound­
aries, there is a serious question whether it has the constitutional authority either
to assert jurisdiction over an expanded territorial sea for international law pur­
poses or to assert sovereignty over it.
   With respect to the statutory issues, we believe that the better view is that the
expansion of the territorial sea will not extend the coverage of the Coastal Zone
Management Act (“CZMA”), 16 U.S.C. §§ 1451-1464, the statute that has been
identified to us by the inter-agency working group as being of special concern.
It must be acknowledged, however, that the effect of the proclamation on the
CZMA is not entirely free from doubt and that the effect of the expansion on
other federal statutes raises complex questions. We therefore recommend that the
President seek legislation stating that federal statutes that rely upon the concept
of the territorial sea are not affected by the President’s proclamation extending
the territorial sea from three miles to twelve miles.
                                                 Analysis
I. The Territorial Sea
   In order to understand the legal issues raised by the proposal to extend the ter­
ritorial sea, we begin by examining three concepts: the meaning of the “territor­
ial sea” as that term is used in international law; the nature of the other areas of
the sea over which a nation may assert some control under international law; and,
finally, the distinction between a claim of sovereignty over the territorial sea and
claims of jurisdiction over other areas of the sea.
   The territorial sea is the belt of water immediately adjacent to the coast of a
nation. See, e.g., Restatement (Third) of The Foreign Relations Law of the United
States § 51 l(a)(1986) (“Restatement Third”); 1 L. Oppenheim , International Law
§ 172, at 416 (H. Lauterpacht ed., 7th ed. 1948) (“Oppenheim”). The territorial
sea extends from the nation’s coast to a distance of up to twelve miles from the
coast, the maximum breadth now permitted by international law. Restatement
Third § 511(a). Although the United States and some other nations continue to
follow the historical practice of adhering to a three-mile territorial sea, most na­
tions now assert sovereignty over a twelve-mile territorial sea.2

    2 “At the time this country won its independence from England there was no settled international custom or un­
derstanding among nations that each nation owned a three-mile water belt along its borders.” United Stales v. Cal­
ifornia, 332 U.S. 19, 32 (1947). By the beginning of the nineteenth century it was generally agreed that the terri­
torial sea extended as far as a cannon could shoot: three miles. See The Ann, 1 F. Cas. 926 (C.C.D. Mass. 1812)

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   A nation is sovereign in its territorial sea. See Convention on the Territorial
Sea, pt. I, art. 1, 15 U.S.T. at 1608.3 Indeed, a nation has the same sovereignty
over the territorial sea as it has over its land territory. See Restatement Third
§512 (sovereignty is the same over the territorial sea as it is over land territory);
Church v. Hubbart, 6 U.S. (2 Cranch) 187, 234 (1804) (Marshall, C.J.) (a nation
exercises absolute and exclusive authority within its own territory, including the
territorial sea); The Ann, 1F. Cas. 926,927 (C.C.D. Mass. 1812) (No. 397) (Story,
J.) (the territorial waters “are considered as a part of the territory of the sover­
eign”).4
   By contrast, a nation is not sovereign over the high seas, which are the re­
mainder of the ocean beyond the territorial sea,5 and include areas such as the
contiguous zone, the continental shelf, and the Exclusive Economic Zone
(“EEZ”).6 Rather, a nation may assert more limited forms of jurisdiction in such
areas. In the contiguous zone, for example, a nation may only exercise control
incident to the application of its customs, fiscal, immigration, and sanitary regu­
lations in the territorial sea. Convention on the Territorial Sea, pt. II, art. 24 (1),


   2 ( ... continued)
(No. 397) (Story, J.)- See generally Sayre A. Swarztrauber, The Three-Mile Limit of Territorial Seas 23-35 (1972)
(describing the history of the cannon-shot rule) (“Swarztrauber”). In the twentieth century, however, the intema-
tional agreement on the three-mile temtorial sea collapsed. Swarztrauber, supra , at 131-251. The 1958 Conven­
tion on the Territorial Sea and the Contiguous Zone (“Convention on the Territorial Sea”), Apr 29, 1958, pt I, art.
3, 15 U.S.T. 1607, 1608, failed to establish an accepted limitation on the extent of the temtorial sea One hundred
four nations now claim a twelve-mile tem torial sea, while only thirteen maintain the three-mile limit. U.S. Dep’t
of State, Summary o f Territorial Sea, Fishery, and Economic Zone Claims 1 (1988)
    3 The Convention on the Territorial Sea, to which both the Umted States and the Soviet Union are parties,
provides, “ [t]he sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea
adjacent to its coast, described as the temtorial sea ” Convention on the Territorial Sea, pt. I, art. 1, 15 U.S.T. at
 1608 (emphasis added). The character of the territorial sea as territory in the same sense that land is territory has
not always been free from doubt. See United States v Louisiana, 363 U.S. 1, 34 (1960) (Harlan, J.) (“a [mar­
itime] boundary, even if it delimits territorial waters, confers nghts more limited than a land boundary”). Simi­
larly, Oppenheim observed in 1937 that “a m inonty of writers emphatically deny the territorial character of the
maritime belt.” Oppenheim, supra, § 185, at 442-43. These statements, however, have given way to the modem
view that a nation exercises the same full sovereignty over its territorial sea as it exercises over its territory on
land. Convention on the Territorial Sea, pt. I, art I, 15 U.S T. at 1608; Restatement Third § 513(1 )(a). The no­
tion that a nation is less than fully sovereign over its territorial sea is now considered archaic. See Restatement
Third § 512, reporters’ note 1.
    4 The only qualification on a nation’s sovereignty within its temtorial sea is that all ships enjoy a nght of inno­
cent passage. Convention on the Temtorial Sea, pt. I, art 14(1), 15 U.S.T. at 1610; Restatement Third § 513(l)(a).
The n ght of innocent passage is extended to warships so long as their passage is not prejudicial to the peace, good
order, or security of the coastal state. Id , pt. 1, arts. 14(4), 22, 23, 15 U.S.T. at 1610, 1612. The nght o f innocent
passage also extends to submarines as long as they are navigating on the surface and show their flag. Id , pt. I, art.
 14(6), 15U S .T . at 1610.
    5 The high seas are open to all nations; no nation may claim sovereignty over any part of the high seas Con­
vention on the High Seas, Apr. 29, 1958, art. 2, 13 U.S T. 2313, 2314. Both the United States and the Soviet Union
are parties to the Convention on the High Seas.
    6 The contiguous zone is the part of the high seas that borders the temtorial sea. Convention on the Temtorial
Sea, pt. II, art 24(1), 15 U S.T. at 1612, Restatement Third § 511(b). The continental shelf includes the sea-bed
and the subsoil o f the submarine areas that extend from the coast to the outer edge of the continental margin (or, if
the continental margin does not extend so far, to a distance of not more than two hundred miles) Restatement Third
§ 51 1(c). The EEZ extends from the coast to no further than two hundred miles from the coast. Id. § 5 1 1(d).

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15 U.S.T. at 1612.7 A nation’s authority over its continental shelf is restricted to
the exploration and exploitation of natural resources. Restatement Third § 515(1).
A nation’s authority within its EEZ is restricted to activities for economic ex­
ploration and exploitation, scientific research, and the protection of the environ­
ment. Id. § 514(1). Outside these areas, a nation has no jurisdiction over the ac­
tivities of other nations. Convention on the High Seas, Apr. 29, 1958, art. 2, 13
U.S.T. 2313,2314.
   In sum, the United States may exercise full sovereign power within its territo­
rial sea, while exercising more limited kinds of jurisdiction in three overlapping
portions of the high seas—the contiguous zone, the continental shelf, and the
EEZ.8
II. Constitutional Authority to Extend the Territorial Sea
   The question of where the power to extend the territorial sea resides under our
constitutional scheme is novel and complex. The Constitution does not discuss
the matter and there has been no direct precedent since President Washington
first claimed a three-mile territorial sea in 1793. The proposed extension raises
issues of the ways in which the United States, through the executive and legisla­
tive branches, may acquire territory and assert sovereignty over it, as well as ques­
tions about the President’s foreign relations power.
   With these concerns in mind, we conclude, for the reasons stated below, that
the President undoubtedly has the power to assert jurisdiction over the territorial
sea so as to establish a new territorial sea for the United States under international
    7 The Convention on the Territorial Sea provides that “[t]he contiguous zone may not extend beyond twelve
miles from the baseline from which the breadth of the tem tonal sea is measured.” Convention on the Territorial
Sea, pt. II, art 24 (2). The proposed proclamation, however, states that “[t]he outer boundary of the contiguous zone
of the United States henceforth extends 24 nautical miles from the baselines from which the territorial sea is mea­
sured ” Although customary international law now permits a nation to claim a contiguous zone up to twenty-four
miles from the basel ines, see, e g , Restatement Third § 511 (b), the United States has declined to ratify the Law of
the Sea Convention in which this new norm is codified. Therefore, the provision extending the contiguous zone
should be deleted from the proclamation.
        It may be true that most countries have adopted the new twenty-four mile contiguous zone by ratifying the
Law of the Sea Convention or would waive their right to protest such an extension. Nevertheless, such a procla­
mation would be inconsistent with our treaty obligations if the new contiguous zone were asserted against another
party to the 1958 Convention on the Tem tonal Sea who wished to protest. We have been advised informally by
the Department of State that the likelihood of protests is small.
    8 Jessup best explams the difference between sovereignty over the temtorial sea and limited jurisdiction over
other areas of the sea:
       There is a vital distinction between that mantime belt which is claimed as a part of the territory of the
        state and the limited rights of control or junsdiction claimed upon the high seas. The confusion is in­
       tensified by the disagreement among text wnters as to the nature of the control or junsdiction exer­
       cised over tem tonal waters. If one starts with the proposition that the littoral state has only a “bundle
       of servitudes” over the tem tonal waters, one is naturally unable to see much distinction between claims
       to a three-mile and to a twelve-mile zone. Similarly if one posits merely certain nghts of control or ju ­
       nsdiction therein. But if, on the other hand, one maintains that each maritime state may rightly claim
       as a part of its temtory a certain mantime belt, then the distinction becomes clear. It is this latter hy­
       pothesis which is believed to be sound, histoncally, theoretically and according to international prac­
       tice
Phillip C. Jessup, The Law o f Territorial Waters and Maritime Jurisdiction xxxiii - xxxiv (1927).

                                                        241
law. We also believe, although the issue is not entirely free from doubt, that he
has the power to assert sovereignty over the territorial sea as a function of his
power to acquire territory on behalf of the United States. Finally, we doubt that
Congress has constitutional authority to assert either sovereignty over an ex­
tended territorial sea or jurisdiction over it under international law on behalf of
the United States.
A. The President’s Power to Assert Jurisdiction
   The President’s power to assert jurisdiction over the territorial sea is based on
his constitutional power over foreign relations.9 The President’s constitutional
role as the sole representative of the United States in foreign relations has long
been recognized. In the words of John Marshall, “The President is the sole organ
of the nation in its external relations, and its sole representative with foreign na­
tions.” 10 Annals of Cong. 613 (1800).10 Thus, it is not surprising that Justice
Sutherland explained the nature of the President’s authority in expansive terms:
            In this vast external realm, with its important, complicated, deli­
            cate and manifold problems, the President alone has the power to
            speak or listen as a representative of the nation.

               It is important to bear in mind that we are here dealing not alone
            with an authority vested in the President by an exertion of leg­
            islative power, but with such an authority plus the very delicate,
            plenary and exclusive power of the President as the sole organ of
            the federal government in the field of international relations—a
            power which does not require as a basis for its exercise an act of
            Congress, but which, of course, like every other governmental
            power, must be exercised in subordination to the applicable pro­
            visions of the Constitution.


    9 It is axiomatic that under our Constitution the President has been given broad authority over the conduct of the
N ation’s foreign relations. United States v Curtiss-Wright Export Corp., 299 U.S. 304, 315-22 (1936). This au­
thority arises from a number of the President’s constitutional powers: as Commander-in-Chief of the Nation’s mil­
itary forces, art. II, § 2, cl 1; as the individual charged with the power to negotiate treaties, art. II, § 2, cl. 2; and as
the individual who receives ambassadors and other foreign representatives, art. II, § 3. O f course, these specific
provisions are supplemented by the general provision of Article II, Section I, Clause 1, which provides that “[t]he
executive power shall be vested in a President of the United States of America ” Additionally, the United States
obtained inherent sovereign authonty over foreign relations when it secured its independence from Great Bntain,
Curtiss-Wright, 299 U.S. at 318, and the President exercises many of the powers that were formerly vested in the
British crown, and that are not enumerated in the Constitution as belonging to Congress. See, e.g., 1 William Black-
stone, Commentaries on the Laws of England 257 (1771 ed ).
    10 Marshall made this remark as a member o f the House of Representatives dunng a debate concerning an ex­
tradition ordered by President John Adams. See Edward S. Corwin, The President: Office and Powers, 1787-1984
at 207-08 (Randall W. Bland et al. eds, 5th ed. 1984).

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United States v. Curtiss-Wright Export Corp., 299 U.S. 304,319-20(1935). Asa
leading constitutional scholar concluded, “[ tjhere is no more securely established
principle of constitutional practice than the exclusive right of the President to be
the nation's intermediary in its dealing with other n a tio n s Edward S. Corwin,
The President: Office and Powers, 1787-1984 at 214 (footnote omitted).
   The Supreme Court addressed the difficult issue of the relationship between
the President’s foreign relations power and his power to assert jurisdiction over
the territorial sea on behalf of the United States in United States v. Louisiana,
363 U.S. 1 (1960) (Harlan, J.). In that case, which involved rights under the Sub­
merged Lands Act, the Court considered the power to fix state boundaries for do­
mestic purposes and the power to fix them for international purposes. The exec­
utive branch had argued that no state could have a boundary of more than three
miles because a state boundary must coincide with the three-mile limit of our
claim to the territorial sea in order to avoid international embarrassment. The
Court rejected that argument as an oversimplification of the issue. Justice Har­
lan described the relationship between the constitutional powers of the executive
and the legislature branches as follows:
           The power to admit new States resides in Congress. The Pres­
        ident, on the other hand, is the constitutional representative of the
        United States in its dealings with foreign nations. From the for­
        mer springs the power to establish state boundaries; from the lat­
        ter comes the power to determine how far this country will claim
        territorial rights in the marginal sea as against other nations. Any
        such determination is, of course, binding on the States. The exer­
        cise of Congress’ power to admit new States, while it may have
        international consequences, also entails consequences as between
        Nation and State. We need not decide whether action by Congress
        fixing a State’s territorial boundary more than three miles beyond
        its coast constitutes an overriding determination that the State, and
        therefore this country, are to claim that much territory against for­
        eign nations. It is sufficient for present purposes to note that there
        is no question of Congress’ power to fix state land and water
        boundaries as a domestic matter.
Id. at 35 (emphasis added).
   The Court thus established two principles: first, that determination of the scope
of the territorial sea as against foreign nations is one of the President’s constitu­
tional powers, and second, that establishing state boundaries is one of Congress’
constitutional powers. The Court left unanswered the question of whether con­
gressional action fixing a state boundary could result in a claim on behalf of the
United States for the purpose of international law. The Court proceeded to care­
fully distinguish between the state boundaries established for domestic purposes
by the Submerged Lands Act and the boundary of the territorial sea established
by the President for international purposes. Id. at 33-36. The Court then held that
                                        243
the state boundary for domestic purposes can be established by Congress irre­
spective of the limit of the territorial sea. Id. at 35-36.
   Thus, it is clear that under Louisiana the President may use his power in the
realm of foreign affairs to assert jurisdiction over the territorial sea on behalf of
the United States as against other nations. We understand that this is the central
purpose of the proposed proclamation and we have no doubt that the President
may issue such an assertion of jurisdiction.
   Indeed, history supports the Court’s statement in Louisiana that the President’s
constitutional position as the representative of the United States in foreign rela­
tions authorizes him to make claims on behalf of the United States concerning
the territorial sea. The primary example, of course, is the first claim of a three-
mile territorial sea made on behalf of the United States by then-Secretary of State
Thomas Jefferson in 1793. France, Great Britain, and Spain—all of which held
territory in North America—were engaged in maritime hostilities off our Atlantic
coast, an extension of wars ongoing in Europe. As part of an effort to undermine
our policy of neutrality, France pressured us to state the extent of our territorial
sea. See Sayre A. Swarztrauber, The Three-Mile Territorial Sea 56-59 (1972).
In response, and although “neither Washington nor Jefferson wished to be hur­
ried” into establishing the limit of our claim, President Washington instructed
Jefferson to make an initial claim for the United States. Id. at 57.'1Jefferson sent
letters to both the French and British Ministers fixing a provisional limit. The let­
ter to the British minister states:
           SIR: The President of the United States, thinking that, before it
           shall be finally decided to what distance from our sea shores the
           territorial protection of the United States shall be exercised, it will
           be proper to enter into friendly conferences and explanations with
           the powers chiefly interested in the navigation of the seas on our
           coasts, and relying that convenient occasions may be taken for
           these hereafter, finds it necessary in the mean time to fix provi­
           sionally on some distance for the present government of these
           questions. You are sensible that very different opinions and claims
           have been theretofore advanced on this subject. The greatest dis­
           tance to which any respectable assent among nations has been at
           any time given, has been the extent of the human sight, estimated
           at upward of twenty miles, and the smallest distance, I believe,
           claimed by any nation whatever, is the utmost range of a cannon
           ball, usually stated at one sea-league. Some intermediate dis­
           tances have also been insisted on, and that of three sea-leagues
           has some authority in its favor. The character of our coast, re­
    11 One month before Jefferson did so, President Washington observed, “[tjhree miles will, if I recollect nghtly,
bnng [the captured Brigantine] Coningham within the rule of some decisions, but the extent of Temtorial jurisdic­
tion at Sea, has not yet been fixed, on account o f some difficulties which occur in not being able to ascertain with
precision what the general practice of Nations in this case has been.” Washington to Governor Thomas Sim Lee,
Oct. 16, 1793, reprinted in 33 The Writings o f George Washington 132 (John C. Fitzpatrick ed., 1940)

                                                      244
           markable in considerable parts of it for admitting no vessels of
           size to pass near the shores, would entitle us, in reason, to as broad
           a margin of protected navigation as any nation whatever. Reserv­
           ing, however, the ultimate extent of this for future deliberation,
          the President gives instructions to the officers acting under his
          authority, to consider those heretofore given them as restrained
          for the present to the distance of one sea-league or three geo­
          graphical miles from the sea-shores. This distance can admit of
           no opposition, as it is recognized by treaties between some of the
           powers with whom we are connected in commerce and naviga­
           tion, and is as little, or less, than is claimed by any of them on their
           own coasts.
Letter from Mr. Jefferson to British Minister George Hammond, Nov. 8, 1793,
reprinted in H.R. Doc. No. 324, 42d Cong., 2d Sess. 553-54 (1872).(emphasis
added).
   Secretary of State Jefferson’s letters, stating the President’s determination,
have traditionally been viewed as the vehicle by which the United States claimed
a three-mile territorial sea. See, e.g., United States v. California , 332 U.S. 19, 33
n.16 (1947). Thus, the President was responsible for the initial assertion of ju­
risdiction over the territorial sea on behalf of the United States. Moreover, Jef­
ferson indicated that the executive reserved the right to extend the territorial sea
in the future.12 We believe that the context makes it clear that the assertion of a
claim over the territorial sea was done as a function of the President’s power as
the representative of the United States in foreign relations, and that the power to
do so has been confirmed by the Supreme Court in Louisiana.
   The actions of two other Presidents who individually asserted control over sec­
tions of the high seas provide further support for the argument that the President’s
constitutional power as the representative of the United States in foreign rela­
tions includes the authority to claim portions of the sea for the United States for
purposes of international law. In 1945 President Truman issued two proclama­
tions, one concerning the continental shelf and another establishing a fisheries
conservation zone. In the Continental Shelf Proclamation, President Truman
stated that the “Government of the United States regards the natural resources of
the subsoil and seabed of the continental shelf.. . [as] subject to its jurisdiction
and control.” Proclamation No. 2667, 3 C.F.R. 67 (1943-1948). This Office ap­
proved the Proclamation and advised that it was lawful both as a statement of na­
tional policy in foreign affairs and as an expansion of the territorial jurisdiction
of the United States. Memorandum for Harold W. Judson, Assistant Attorney
General, Office of Assistant Solicitor General, from William H. Rose (Sept. 16,

    12 Not only does the letter imply as much, but also Jefferson as President reportedly proposed to claim a broader
tem tonal sea, emphasizing that in the 1793 letter he had “taken care expressly to reserve the subject for future con­
sideration, with a view to this same doctrine for which he now contends.” 1 Memoirs o f John Quincy Adams 375-7 6
(Charles Francis Adams ed. 1874) (quoting a conversation with Jefferson).

                                                      245
1945). On the same day, President Truman also issued a proclamation which
stated that the United States regarded it as proper to establish fishery conserva­
tion zones in certain areas of the high seas contiguous to the United States. Procla­
mation No. 2668, 3 C.F.R. 68 (1943-1948). Where the fishing was by United
States nationals alone, “the United States regards it as proper to establish ex­
plicitly bounded conservation zones in which fishing activities shall be subject
to the regulation and control of the United States.” Id. The Proclamation then
went on to declare that the United States’ policy with respect to zones where na­
tionals of other countries also fished would be determined by agreements be­
tween the United States and foreign states. This Proclamation, with its explicit
statement of how the issue would be resolved with respect to other nations, was
clearly based on the President’s constitutional power to represent the United
States’ interests in the international arena. Finally, in 1983 President Reagan used
the same power when he proclaimed “the sovereign rights and jurisdiction of the
United States” to an exclusive economic zone extending two hundred miles from
the coast of the United States. Proclamation No. 5030, 3 C.F.R. 22 (1984).13 All
of these precedents illustrate that the President’s constitutional role as the repre­
sentative of the United States in foreign relations permits him to proclaim juris­
diction over certain areas of the sea, consistent with international law, on behalf
of the United States.

B. The President’s Power to Assert Sovereignty

   The more difficult issue is whether the President may assert sovereignty over
the territorial sea.14 The key difference between this and an assertion of juris­
diction is that an assertion of sovereignty means that the territorial sea would be
considered a part of the territory of the United States— i.e., as much a part of the
continental United States as a piece of land. While originally subject to doubt by
some, the modem view is that the territorial sea is part of a nation and that a na­
tion asserts full sovereignty rights over its territorial sea.15 The issue therefore
becomes whether the President has the authority to assert sovereignty over terri­
tory on behalf of the United States. As indicated below, Presidents have asserted
this authority. Based on this historical record, we conclude that the President act­
ing alone may assert sovereignty over an extended territorial sea on behalf of the
United States, as a matter of discovery and occupation.
   The Constitution does not specifically address the power to acquire territory on

    13 The President is also authorized to establish “defensive sea areas” by executive order for purposes of national
defense. 18 U.S.C. § 2152. See also U.S. Naval War College, International Law Situation and Documents— 1956
ai 603-04 (1957) (listing defensive sea areas established by the President).
    14 We believe an assertion of sovereignty over the territorial sea would be tantamount to, and would raise the
sam e considerations as, the acquisition of land territory. See supra note 3. Because we believe that the territorial
sea is probably territory in the same sense that land is territory, we must examine the means by which the United
States may acquire territory.
    15 See supra note 3.

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behalf of the United States.16 Nonetheless, it is now agreed that the United States
has the power to acquire territory as an incident of national sovereignty. See, e.g.,
MormonChurch v. UnitedStates, 136U.S. 1,42 (1890).17 The United States has
acquired territory through cession, purchase, conquest, annexation, treaty, and dis­
covery and occupation.18These methods are permissible under international law19
and have been approved by the Supreme Court.20 The executive and the legisla­
ture have performed different roles in the acquisition of territory by each of these
means. Unfortunately, the historical practice does not supply a precise explanation
of where the Constitution places the power to acquire territory for theUnited States.
1. Assertion of Sovereignty by Treaty
   The clearest source of constitutional power to acquire territory is the treaty
making power. Under the Constitution, the President “shall have Power, by and
with the Advice and Consent of the Senate, to make Treaties, provided two-thirds
of the Senators present concur.” U.S. Const, art. II, § 2, cl. 2. It is pursuant to that
power that the United States has made most acquisitions of territory, as a result
of either purchase or conquest.21 Thus, “[i]t is too late in the history of the United
    16 As Senator (later Justice) Sutherland observed, “[tjhere is no provision in the Constitution by which the na­
tional government is specifically authorized to acquire territory; and only by a great effort of the imagination can
the substantive power to do so be found in the terms of any or all of the enumerated powers.” George Sutherland,
Constitutional Power and World Affairs 52 (1919)
    17 The authonty of the United States to acquire territory was seriously questioned in the years immediately fol­
lowing the adoption of the Constitution. The argument against federal authority to acquire territory relied upon the
Tenth Amendment provision that the powers not delegated to the federal government are reserved to the states or
to the people 2 Joseph Story, Commentaries on the Constitution of the United States § 1317 (2d ed. 1851). The
Louisiana Purchase afforded the most urgent occasion for the consideration of the issue. Secretary of the Treasury
Gallaun advised President Jefferson that “the power of acquinng territory is delegated to the United States by the
several provisions which authorize the several branches of government to make war, to make treaties, and to gov­
ern the territory of the Union ” Letter from Gallatin to Jefferson, Jan 13, 1803, reprinted in 1 Writings of Albert
Gallatin 114 (Henry Adams ed. 1879) Jefferson himself was more concerned about his authority to incorporate
the territory into the United States than the authority to acquire the tem tory See Letter from Jefferson to Gallatin,
Jan 1803, reprinted in 1 Writings o f Albert Gallatin, supra, at 115. See also Downes v. Bidwell, 182 U.S. 244,
322-33 (1901) (White, J , concumng). As the United States conunued to acquire large areas of land, the power to
acquire territory was taken to have been settled during the nineteenth century. See 2 J. Story, supra, § 1320.
    18 Tem tory is acquired by discovery and occupation where no other recognized nation asserts sovereignty over
such temtory. In contrast, when temtory is acquired by treaty, purchase, cession, or conquest, it is acquired from
another nation
    19 See. e g , Oppenheim, supra , § 211, at 498.                                                                4
    20 The Supreme Coun has acknowledged the authonty to acquire temtory by these methods See, e g , Curtiss-
Wright, 299 U S. at 318 (“The power to acquire territory by discovery and occupation . . exist[s] as inherently in­
separable from the conception of nationality.”), American Ins Co v Canter , 26 U.S. (1 Pet.) 511, 542 (1828) (Mar­
shall, C.J ) (“The Constitution confers absolutely on the government of the Union, the powers of making war, and of
making treaties; consequently, that government possesses the power of acquinng temtory, either by conquest or by
treaty.”)
    21 See Treaty Between the United States and the French Republic, Apr. 3 0 ,1803, an. 1,8 Stat. 200,201 (Louisiana
Purchase); Treaty of Amity, Settlement, and Limits, Between the Umted States of Amenca and his Catholic Majesty,
Feb 22,1819, art. 2 ,8 Stat. 252,253 (cession of Honda by Spain); Treaty with Great Britain, June 15,1846, art 1,9
Stat. 869 (Oregon Compromise), Treaty of Peace, Friendship, Limits and Settlement between the United States of
Americaand the Mexican Republic, Feb 2,1848, an. 5,9 Stat 922,926-27 (cession of California by Mexico); Treaty
with Mexico, Dec 30, 1853, art 1, lOStat. 1031, 1032 (Gadsden Purchase); Treaty with Russia, Mar 30, 1867, art.
1, 15Stat. 539(cessionof Alaska by Russia); Isthmian Canal Convention, Nov. 18, 1903, arts. 2 & 3,33 Stat. 2234,
2234—35 (cession of Panama Canal Zone by Panama), Convention Between the United States and Denmark for Ces­
sion of the Danish West Indies, Aug 4,1916, art. 1,39 Stat. 1706 (purchase of the Virgin Islands from Denmark).

                                                        247
States to question the right of acquiring territory by treaty.” Wilson v. Shaw, 204
U.S. 24, 32 (1907). There is no doubt that the United States can acquire territory,
including the territorial sea, by treaty.
2. Assertion of Sovereignty by the President Acting Alone - Discovery and
Occupation
   The more difficult issue is whether the President, acting alone, may acquire
territory for the United States. Because of several venerable, and unchallenged,
historical examples of such acquisitions, we believe that he can, even though the
practice may be subject to some constitutional question. First and foremost, it
can be reasonably argued that President Washington and Secretary of State Jef­
ferson in making the original claim to the territorial sea relied on the President’s
constitutional power as the representative of the United States in foreign affairs
to proclaim sovereignty, and not simply jurisdiction, over unclaimed territory.
Although we have not found any evidence of Jefferson’s view of the nature of
the rights of the United States in the territorial sea, both Chief Justice Marshall
and Justice Story viewed the territorial sea as part of the territory of the United
States. See Church v. Hubbart, 6 U.S. (2 Cranch) at 234 (Marshall, C.J.); The
Ann, 1 F. Cas. at 926-27 (Story, J.).
   Similarly, there are two instances in which the President acquired territory act­
ing alone by discovery and occupation.22 In 1869, “[t]he Midway Islands... were
formally taken possession of in the name of the United States ... by order of the
Secretary of the Navy.” S. Rep. No. 194,40th Cong., 3d Sess. 1 (1869). See also
S. Exec. Doc. No. 79, 40th Cong., 2d Sess. (1868). And “[t]he United States
claim[ed] jurisdiction . .. over . . . Wake’s Island . . . possession of which was
taken by the U.S.S. Bennington on January 17,1899.” Letter from Mr. Hill, As­
sistant Secretary of State, to Mr. Page, Feb. 27, 1900, 243 MS Dom. Let. 246,
quoted in 1 J. Moore, International Law Digest § 111, at 555 (1906) (“Moore”).23
   The acquisition of Midway and Wake Islands by the Navy confirms that the
President has the constitutional authority to acquire territory by discovery and
occupation. Professor Henkin, for example, has stated that the President can “ac­
quire territory by discovery or prescription.” Louis Henkin, Foreign Affairs and
   , 22 There is a third example of unilateral acquisition by the President by executive agreement. In this regard, Pres­
ident Fillmore entered into an executive agreement m 1850 in which Great Britain “cede[d] to the United States
such portion of the Horseshoe Reef as may be found requisite” for a lighthouse in Lake Erie near Buffalo Proto­
col of a Conference Held at the Foreign O ffice, Dec 9, 1850, 18 Stat. (Part 2) 325-26. See also 5 Treaties and
Other International Acts o f the United States o f America 905-28 (Hunter Miller ed., 1937) (describing the acqui­
sition o f Horseshoe Reef). The acceptance o f the cession appears to have been made pursuant to the President’s
power as representative of the United States in foreign affairs.
     23 The acquisition o f American Samoa is frequently cited as evidence of the executive’s independent authonty
to acquire territory for the United States. See, e g , \ Westel Woodbury Willoughby, The Constitutional Law of the
United States § 240a (2d ed 1929) President McKinley did assert control over American Samoa by executive or­
der in 1900. He acted, however, one month after the Senate ratified a treaty in which Great Britain and Germany
renounced “in favor of the United States of America” any rights they had to claim the islands. Convention between
the United States, Germany, and Great Britain, Dec. 2, 1899, art. II, 31 Stat. 1878, 1879 (1900). Prior to the treaty,
the United States, Great Britain, and Germany had failed in an effort to jointly manage the Samoan Islands. See
generally American Samoa A General Report by the Governor 22-43 (1927), Moore, supra, § 110. The existence
of the treaty partially undermines the claim that the acquisition of American Samoa is an example of acquisition
by executive action alone.
                                                        248
the Constitution 48 (1972). Another writer concluded that “[t]he President is com­
petent to recognize the acquisition of territory by discovery and occupation.” Q.
Wright, The Control of American Foreign Relations § 197, at 274 (1922). More­
over, it appears that the power to acquire territory by discovery and occupation
“flows from [the President’s] constitutional position as the representative organ
of the government” for purposes of foreign affairs. Id. § 73, at 134 n.12.24
   Practical considerations also illuminate why the President’s power to assert sov­
ereignty as a matter of discovery and occupation has gone unchallenged. As our
representative in foreign affairs, the President is best situated to announce to other
nations that the United States asserts sovereignty over territory previously un­
claimed by another nation. With Midway and Wake Islands, for example, the Pres­
ident— through the Navy—acted because there was no other governmental repre­
sentative present who could assert sovereignty on behalf of the United States.
   The President’s authority to acquire territory by discovery and occupation sug­
gests to us that the President may assert sovereignty over the contemplated ex­
tension of the territorial sea. When territory is acquired by discovery and occu­
pation, it is acquired by the assertion of the acquiring nation that it is henceforth
sovereign in that territory. Similarly, when a nation asserts sovereignty over an
extended territorial sea, it acquires territory which is not subject to the sover­
eignty of another nation. Accordingly, the considerations which explain why the
President’s constitutional position as the representative of the United States in
foreign affairs allows him to acquire territory by discovery and occupation coun­
sel that the same constitutional status allows him to proclaim sovereignty over
an extended territorial sea.
   Justice Harlan’s statement for the Court in Louisiana that the power to assert
territorial rights in the sea derives from the President’s power as the constitu­
tional representative of the United States in foreign affairs also appears to affirm
the President’s authority to assert sovereignty over the territorial sea. Even though
Justice Harlan expressed doubt whether the territorial sea was “territory,”25 he
   24 One writer, however, has concluded that the President cannot acquire territory without congressional approval
See Lawson Reno, The Power of the President to Acquire and Govern Territory, 9 Geo Wash. L. Rev. 251, 285
(1941). Reno did not discuss the acquisition of Horseshoe Reef. He believed that legislative approval, albeit some­
times implicit, accompanied each of the other acquisitions of temtory by the executive. He explained that the United
States’ sovereignty over Midway derived from the annexation of Hawaii, which had been sovereign over the island
before annexation Reno, supra, at 275-76. He also asserted that the acquisition of Wake Island was unimportant
because of the uncertainty surrounding the occupation by and claims of the United States in those territories Id at
276-77. Finally, he justified the United States' sovereignty over American Samoa as supported by implied con­
gressional approval. Id at 279-81.
    25 Justice Harlan wrote, “The concept of a boundary in the sea,” as opposed to one between two states on land,
“is a more elusive one ” Louisiana, 363 U S. at 33. He explained:
        The extent to which a nation can extend its power into the sea for any purpose is subject to the con­
        sent of other nations, and assertions of jurisdiction to different distances may be recognized for dif­
        ferent purposes. In a manner of speaking, a nation which purports to exercise any nghts to a given dis­
        tance in the sea may be said to have a maritime boundary at that distance. But such a boundary, even
        if it delimits tem tonal waters, confers rights more limited than a land boundary. It is only in a very
        special sense, therefore, that the foreign policy of this country respecting the limit of territorial waters
        results in the establishment of a “national boundary ”
Id at 34 (footnote omitted) Justice Harlan’s view of the nature of the territorial sea as being something less than ter­
ritory has since been rejected by the United States as well as modem international law scholars, see supra note 3

                                                         249
clearly indicated that the President has the power “to determine how far this coun­
try will claim territorial rights in the marginal sea as against other nations."26
   In sum, we believe that the President may assert jurisdiction over an expanded
territorial sea. Further, we believe that he may also assert sovereignty over an ex­
panded territorial sea. To be sure, the historically more prevalent practice of ter­
ritorial acquisition has been by treaty, but this in itself does not deny the author­
ity of the President to make an assertion of sovereignty as a matter analogous to
discovery and occupation. Nevertheless, to bolster the sufficiency of the proposed
proclamation, we strongly recommend that the proclamation state both that it is
asserting jurisdiction and that it is asserting sovereignty over the expanded terri­
torial sea.27 We believe that this formulation provides the best defense to any hy­
pothetical challenge to the President’s exercise of power—a challenge which,
judging by the historical record, we would anticipate to be unlikely.
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, 100th Cong., 2d 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 constitu­
tional authority to act as the representative of the United States in foreign affairs,
Congress may proclaim jurisdiction or sovereignty over the territorial sea for in-


    26 Id at 35 (emphasis added). There may also be an argument that President Washington’s unilateral assertion
o f sovereignty over the original territorial sea is now underpinned by longstanding congressional acquiescence. In
addition, when the Senate ratified the Convention on the Territorial Sea, it agreed that the United States should have
a tem tonal sea and it did not place a limit on its breadth. Further, it agreed that the United States was sovereign
over the tem tonal sea — which as a matter of fact, for the United Slates, was the sea that President Washington had
claimed on behalf of the United States Thus, there is at least arguable recognition by the legislature of the Presi­
dent ’s power in its explicit desire that the United States exercise full sovereignty over the temtorial sea claimed by
our first President.
    27 For example, the proclamation might state. “In order to assert jurisdiction as against foreign nations and to
assert sovereignty on behalf of the United States .
    28 Congress has occasionally considered legislation to extend the temtorial sea of the United Slates. E.g., H.J.
Res. 308, 91st Cong., 1st Sess. (1969), S.J. Res. 8 4 ,91st Cong., 1st Sess (1969); S J. Res 136, 90th Cong., 2d Sess
(1968), H.R 10492, 88th Cong., 2d Sess (1964). None of these bills has been enacted
        O f course, Congress has enacted statutes with respect to aspects of the United States’ junsdiction over the
territorial sea and the high seas. A 1794 federal statute provided for federal court jurisdiction within the three-mile
tem tonal sea. Act of June 5, 1794, ch 51, § 6, 1 Stat. 384. Many federal statutes govern conduct in various areas
of our offshore waters. See, e.g , 14 U.S.C. § 89 (Coast Guard authonty within waters over which the United States
has junsdiction for law enforcement purposes); 19 U.S.C. § 1581(a) (Customs authority within the “customs wa­
ters” as defined by 1 9 U S C .§ 14010)) Additionally, Congress acted to implement PresidentTruman’scontinental'-
shelf proclamation for domestic law purposes by enacting the Outer Continental Shelf Act, 43 U.S C. §§ 1331 -1356,
which claimed submerged lands for the federal government. However, all these statutes were enacted after the Pres-
ident’s initial proclamations of sovereignty or junsdiction within the area on behalf of the United States.

                                                        250
temational law purposes only if it possesses a specific constitutional power there­
for.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 resolu­
tion. 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, 28th Cong., 1st Sess. 652 (1844). Congress then consid­
ered 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, 28th Cong., 2d Sess. 247 (1845) (statement of Sen.
Rives); id. at 278-81 (statement of Sen. Morehead); id. at 358-59 (statement of
Sen. Crittenden). Supporters of the measure relied on Congress’ power under Ar­
ticle 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. Wood­
bury); 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 annexa­
tion. 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, Con­
gress then considered a measure to annex the land by joint resolution. Indeed,
Congress acted in explicit reliance on the procedure followed for the acquisi­
tion of Texas. As the Senate Foreign Relations Committee report pronounced,
“[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,
55th Cong., 2d Sess. 1 (1898). This argument, however, neglected one signifi­
cant nuance: Hawaii was not being acquired as a state. Because the joint reso­
lution annexing Texas relied on Congress’ power to admit new states, “the
method of annexing Texas did not constitute a proper precedent for the annex­
ation of a land and people to be retained as a possession or in a territorial con­
dition.” Andrew C. McLaughlin, A Constitutional History of the United States
504 (1936). Opponents of the joint resolution stressed this distinction. See, e.g.,

    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 de­
clare war, art. I, § 8, cl. 11. Congress also exercises considerable authority over the temtory of the United States.
The Constitution authorizes Congress to admit new states, art. IV, § 3, cl 1, and to dispose of and regulate the prop­
erty of the United States, art. IV, § 3, cl. 2.

                                                      251
31 Cong. Rec. 5975 (1898) (statement of Rep. Ball).30 Moreover, as one con­
stitutional scholar wrote:
           The constitutionality of the annexation of Hawaii, by a simple leg­
           islative act, was strenuously contested at the time both in Con­
           gress and by the press. The right to annex by treaty was not de­
           nied, 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 opera­
           tion 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 (2d 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 resolu­
tion—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 reso­
lution. Accordingly, it is doubtful that the acquisition of Hawaii can serve as an
appropriate precedent for a congressional assertion of sovereignty over an ex­
tended territorial sea.3v
    We believe that the only clear congressional power to acquire territory derives
from the constitutional power of Congress to admit new states into the union. The
admission of Texas is an example of the exercise of this power. Additionally, the
Supreme Court in Louisiana recognized that this power includes “the power to
establish state boundaries.” 363 U.S. at 35. The Court explained, however, that
it is not this power, but rather the President’s constitutional status as the repre­
   30 Representative Ball argued:
        Advocates of the annexation of Texas rested their case upon the express power conferred upon Con­
        gress 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 tem tory already be­
        longing to the United States or some one o f the States forming the Federal Union. Whether, therefore,
        we subscribe to the one or the other school of thought in that matter, we can find no precedent to sus­
       tain the method here proposed for admitting foreign temtory.
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 authonzed the extension of United States’ control to guano islands 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.

                                                       252
sentative of the United States in foreign affairs, which authorizes the United States
to claim territorial rights in the sea for the purpose of international law. The Court
left open the question of whether Congress could establish a state boundary of
more than three miles beyond its coast that would constitute an overriding claim
on behalf of the United States under international law. Id. Indeed, elsewhere in
its opinion the Court hints that congressional action cannot have such an effect.
Id. at 51.
   In the time permitted for our review we are unable to resolve the matter de­
finitively, but we believe that H.R. 5069 raises serious constitutional questions.
We have been unable to identify a basis for the bill in any source of constitutional
authority. Because of these concerns, we believe that, absent a treaty, the pro­
posed proclamation represents the most defensible means of asserting sovereignty
over the territorial sea.
III. The Proclamation’s Effect on Domestic Law
   In this section, we consider what effect the proposed proclamation will have
on domestic law. By its terms, the proclamation will make clear that it is not in­
tended to affect domestic law. Congress may, however, have enacted statutes that
are intended to be linked to the extent of the United States’ territorial sea under
international law. The issue, therefore, in determining the effect of the procla­
mation on domestic law is whether Congress intended for the jurisdiction of any
existing statute to include an expanded territorial sea. Thus, the question is one
of legislative intent.32
A. Statutory Intent
   The statutes potentially affected by the proclamation are too numerous to con­
sider individually in the time permitted. However, we can discuss some of the
considerations relevant to a determination whether Congress intended the appli­
cation of a statute to be affected by a change in the breadth of the United States’
territorial sea, and then make such a determination with respect to the particular
statute of interest to the inter-agency working group—the Coastal Zone Man­
agement Act, 16 U.S.C. §§ 1451-1464 (“CZMA” or “Act”).
   The most important consideration in determining whether Congress intended
a statute to be affected by a change in the breadth of the territorial sea is the lan­
guage of the statute. If a statute includes a provision that simply overlaps or co­
incides with the existing territorial sea—such as the provision “three miles sea­
ward from the coast of the United States”—the operation of the statute will
    32 While the Constitution provides the President with the power to represent the United States in foreign affairs
and thus to assert a claim under Internationa] law, see supra pp. 241-50, the Constitution grants Congress the power
to enact statutes with domestic effect within the areas of its enumerated powers. Congress could enact legislation
stating that the area affected by a statute could be expanded either by presidential or congressional action The Pres­
ident can be delegated the authonty to fill in the details of a statute, such as determining the extent of a statute’s ju­
nsdiction. Congress can always amend a statute, through passage of a new law, to expand its coverage.

                                                        253
probably not, in the absence of special circumstances, be affected by a change in
the territorial sea. Indeed, the statute does not appear to invoke the concept of the
territorial sea at all, except for denoting an area that coincides with the territor­
ial sea. A similar case is presented by a statute that uses the term “territorial sea”
but then defines it as “three miles seaward from the coast of the United States.”
Although the statute refers to the territorial sea, the definition reveals that Con­
gress understood the area involved as the three-mile territorial sea in existence
when the statute was enacted.
   Of course, the more difficult cases will arise where Congress has used more
ambiguous language. The best example is a statute which refers to the term “ter­
ritorial sea” without further defining it. Congress could have intended the term
to refer to the three miles that history and existing practice had defined or Con­
gress could have intended the statute’s jurisdiction to always track the extent of
the United States’ assertion of territorial sea under international law. A determi­
nation of congressional intent in these circumstances will therefore require fur­
ther inquiry into the purpose and structure of a particular statute, and may include
reference to the legislative history, the interpretation of the statute by the execu­
tive branch and the courts, and the meaning of similar statutes governing the same
subject matter.
B. Coastal Zone Management Act
   The CZMA was enacted in 1972 to provide a program of federal grants to the
states for the purposes of (1) preserving and developing the Nation’s coastal zone
and (2) encouraging and assisting the states in exercising their coastal zone re­
sponsibilities through the development of management programs designed to
achieve wise and coordinated use of coastal zone resources. 16 U.S.C. § 1452.
Under the Act, the Secretary of Commerce may make various grants to states for
the development, implementation and protection of management programs. 16
U.S.C. §§ 1454-1464.
   The states establish management programs, subject to the approval of the Sec­
retary, within the area of the coastal zone. The CZMA defines “coastal zone” as
        the coastal waters (including the lands therein and thereunder) and
        the adjacent shorelands (including the waters therein and there­
        under), strongly influenced by each other and in proximity to the
        shorelines of the several coastal states . . . . The zone extends, in
        Great Lakes waters, to the international boundary between the
        United States and Canada and, in other areas, seaward to the outer
        limit o f the United States territorial sea. The zone extends inland
        from the shorelines only to the extent necessary to control shore­
        lands, the uses of which have a direct and significant impact on
        the coastal waters. Excluded from the coastal zone are lands the
        use of which is by law subject solely to the discretion of or which
        is held in trust by the Federal Government, its officers or agents.
                                         254
16 U.S.C. § 1453(1) (emphasis added). Thus, the CZMA defines the coastal zone
partly in terms of the “United States territorial sea.”
   The text of the CZMA does not expressly indicate whether Congress intended
the coastal zone to be affected by an expanded claim of territorial sea under in­
ternational law. Inferences from the purposes, structure, and legislative history
of the Act, however, suggest that the better view is that Congress intended the
coastal zone to be stationary.33
1. Statutory Purpose and Structure
   There are several purposive and structural reasons why we believe Congress in­
tended the reference to “territorial sea” in the CZMA to refer to the existing three
mile area. First, Congress made numerous findings when enacting the CZMA. Con­
gress stated that the coastal zone is rich in natural resources, that it is “ecologically
fragile,” that it has experienced a loss of living marine resources and nutrient-rich
areas, and that present institutional arrangements for planning and regulating the
coastal zone are inadequate.3416 U.S.C. § 1451. These findings were based on em­
pirical observation and investigation of the coastal zone that existed at the time the
CZMA was enacted, and it was the coastal area out to three miles that was the fo­
cus of Congress’ concern. These factual findings indicate that it is unlikely that the
coastal zone was intended to change with the expansion of the territorial sea. Con­
gress could not have known whether these findings would also be true of other ar­
eas over which the United States might assert its jurisdiction or sovereignty. Dif­
ferent conditions obviously could hold depending upon whether the President
asserted a territorial sea of three, twelve, or two hundred miles.
   Second, it is unlikely that Congress would have intended the CZMA’s scope
to expand beyond the clear limit of the states’ jurisdiction. The central purpose
of the CZMA was to assist and encourage the states to regulate use of the coastal
zone,3S and there is serious question whether the states can extend their regula­
tory jurisdiction beyond the limit of the three-mile belt. In this regard, there are
two reasons why the states would not be able to regulate an expanded section of
the territorial sea in the comprehensive way contemplated by the CZMA: the
states do not have jurisdiction over the soil beneath the nine miles of the expanded
territorial sea and it is very uncertain whether the states could assert jurisdiction
    33 In interpreting the CZMA, there are both the Act as originally passed in 1972 and the subsequent amendments
to the Act to consider. See Pub. L. Nos. 94-370 (1976), 90 Stat. 1013 & 96-^64,94 Stat. 2060 (1980). The defin­
ition of coastal zone was included in the original Act, and has not been amended in any substantive respect. We ac­
cordingly look principally to the original Act in determining Congress' intent, and only consider the amendments
to determine whether they were intended to alter the meaning of the original definition. See Secretary o f Interior
v California , 464 U S. 312, 330 n.15, 331-32 (1984) (relying principally upon legislative history of the original
CZMA, but also considering later provisions).
    34 See also S. Rep No. 753, 92d Cong., 2d Sess. 4 (1972) (“Why single out the coastal zone for special man­
agement attention? . . . The fact is that the waters and narrow strip of land within the coastal zone is where the most
critical demands, needs and problems presently exist.")
    35 See 16 U.S.C. §§ 1451(i), 1452(2). Moreover, section 1455(d) of title 16 requires the Secretary o f Commerce,
pnor to approving a state management program, to find that the State “has authority for the management of the
coastal zone in accordance with the management program,” including the power to administer land and water use
regulations, to control development, and to condemn property, for the purpose of achieving compliance with the
management program.

                                                        255
even to regulate the waters of that section. We discuss these points in turn.
    States had for decades generally assumed that they at least controlled the land
beneath the territorial sea. However, in United States v. California, the Supreme
Court held—contrary to many states ’ assumption—that “the Federal Government
rather than the state has paramount rights in and power over [the three mile mar­
ginal] belt, an incident to which is full dominion over the resources of the soil
under that water area.” 332 U.S. at 38-39. In response to vigorous state protests
to this opinion, Congress in 1953 enacted the Submerged Lands Act, 43 U.S.C.
§§ 1301-1315, which granted to the states the lands beneath the navigable wa­
ters within their boundaries, 43 U.S.C. § 1311(a), which boundaries were at a
minimum to be set at “a line three geographical miles distant from [a state’s] coast
line.” Id. § 1312.36 In the same year, Congress also passed the Outer Continen­
tal Shelf Lands Act, 43 U.S.C. §§ 1331-1356 (“OCSLA”), which established
claims for the federal government over the submerged lands which lay seaward
of the submerged lands controlled by the states, i.e., the submerged lands beyond
the three-mile limit.37 43 U.S.C.§§ 1331(a), 1332(1) & 1333(a)(1). Accordingly,
if the President extends the United States’ territorial sea to twelve miles, the states
could not exercise jurisdiction over the submerged lands of that area. These lands
are controlled by the federal government pursuant to OCSLA.
    Second, it is not clear whether the states could assert jurisdiction even over the
waters of the expanded portion of the territorial sea. “[A]n assertion of a wider
territorial sea by the United States . . . would not itself give rights in the addi­
tional zone to the adjacent States. Unless Congress determined otherwise, the
zone between three and twelve miles would be under the exclusive authority of
the Federal Government.” Restatement Third § 512, reporters’ note 2. It is there­
fore reasonable to assume that the states’ boundaries and regulatory jurisdiction
are fixed at their existing limits, and that states have no more power to assert ju­
risdiction over the expanded portion of the territorial sea than they do over other
territories that are acquired by the United States. See also Louisiana, 363 U.S. at
35; United States v. Maine, 469 U.S. 504, 513 (1985).38
    36 More precisely, the Submerged Lands Act conferred land on the states based on state boundaries as they ex­
isted at the time the state became a member of the Union, or as approved by Congress. 43 U.S.C § 1301 (b) States
that had not asserted seaward boundaries of three miles were authorized to do so 43 U.S.C. § 1312. Moreover, the
Act did not prejudice the existence of a further seaward boundary if one existed when the state was admitted to the
Union or if the boundary had been approved by Congress, but limited the extent of seaward boundaries to three
miles into the Atlantic and Pacific Oceans, and to approximately nine miles into the G ulf of Mexico See United
States v. Louisiana, 363 U.S 1 (1960) (historical evidence supported Texas’ claim to lands beneath navigable wa­
ters within nine miles o f its coast in the Gulf of Mexico)
    37 President Truman had asserted junsdiction over the continental shelf on behalf of the United States in 1945.
Proc. No. 2667, 3 C F R. 67 (1943—1948) See supra p 245.
    38 However, this is not to say that the states might not attempt to expand their regulatory junsdiction. The states
might assert this power as an aspect of their sovereignty retained under the Tenth Amendment, at least to the ex­
tent that the jurisdiction did not conflict with international law, or the states might attempt to found the jurisdiction
on histoncal grounds. See Manchester v Massachusetts, 139 U.S. 240, 264 (1891), Skiriotes v Florida, 313 U.S.
69, 77 (1941). But see United States v. California , 332 U S. at 37 (distinguishing Manchester v Massachusetts)',
United States v. California, 381 U.S. 139, 168—69 (1965) (“Although some dicta in [Manchester] may be read to
support” the view that “a State may draw its boundaries as it pleases within limits recognized by the law o f nations
regardless o f the position taken by the United States,” “we do not so interpret the opinion The case involved nei­
ther an expansion of our traditional international boundary nor opposition by the United States to the position taken
by the State.”).
                                                         256
   However, it is not necessary for present purposes to decide whether the states
could assert jurisdiction to regulate the waters of the expanded section of the ter­
ritorial sea. Thus, given the absence of any clear state authority over the soil be­
neath an expanded territorial sea and the uncertainty of state authority over the
expanded water area, it is most unlikely that the Congress that enacted the CZMA
would have simply assumed that state authority would expand if the United
States’ territorial sea expanded.
2. Legislative History
   An examination of the legislative history of the definition of coastal zone also
supports this conclusion. In particular, the CZMA represented a compromise be­
tween Senate and House bills. The bill reported by the Senate Committee on Com­
merce included a definition of the coastal zone similar to the final Act. It pro­
vided:
         The zone terminates, in Great Lake waters, at the international
         boundary between the United States and Canada and, in other ar­
         eas, extends seaward to the outer limit of the United States terri­
         torial sea.
S. Rep. No. 753, 92d Cong., 2d Sess. 47 (1972).
    The only relevant discussion of this provision in the Senate Report states that
“[t]he outer limit of the [coastal] zone is the outer limit of the territorial sea, be­
yond which the States have no clear authority to act.” Id. at 9. Thus, the Senate
Report is consistent with the conclusion that the coastal zone was intended to ex­
tend only to the limit of the existing three mile territorial sea, the limit of state
jurisdiction.
    After issuance of the Report, however, the definition of coastal zone was
amended on the floor of the Senate. Senator Spong was concerned that the bill
“might have a prejudicial effect upon the matter of United States against
Maine,”39 in which the United States was seeking a determination against the
thirteen Atlantic coastal states concerning control over the submerged lands “of
the bed of the Atlantic Ocean more than three geographic miles from the coast­
line.” 118 Cong. Rec. 14,185 (1972). Thus, he proposed an amendment, “the sole
purpose of which is to assure that the bill will have no prejudicial effect upon the
litigation.” Id. The amendment changed the definition of coastal zone to the fol­
lowing:
         The zone terminates, in Great Lake waters, at the international
         boundary between the United States and Canada and, in other ar­
         eas, extends seaward to the outer limit of the legally recognized
         territorial seas of the respective coastal states, but shall not ex­
         tend beyond the limits of State jurisdiction as established by the
  39 C f United States v. Maine. 420 U S. 515 (1975).

                                                    257
            Submerged Lands Act o f May 22,1953 and the Outer Continen­
            tal Shelf Act o f 1953.
Id. at 14,185 (emphasis added to indicate changed language). Senator Hollings
also spoke in support of the amendment. He stated:
            We have been trying to reconcile the amendments so that we
            would not interfere with any legal contention of any of the sev­
            eral States at the present time involved in court procedures. At the
            same time we wanted to make certain that Federal jurisdiction was
            unimpaired beyond the 3-mile limit in the territorial sea.
Id.40 Thus, the change in the Senate bill language was not intended to have sig­
nificant effect on the issue at hand, but was only included to avoid affecting pend­
ing litigation. The language in the House bill was virtually identical to that in the
original Senate bill. The House bill provided:
            The zone extends, in Great Lakes waters, to the international
            boundary between the United States and Canada and, in other ar­
            eas, seaward to the outer limit of the United States territorial sea.
H.R. Rep. No. 1049,92d Cong., 2d Sess. 2 (1972). The House Report, however,
adopted a different understanding of the provision. The House Report stated that
the coastal zone extends outward
            to the outer limit of the territorial sea which, under the present
            posture of international law, means three miles from the base line
            from which the territorial sea of the United States is measured.
            Should the United States, by future action, either through inter­
            national agreement or by unilateral action, extend the limits of
            the United States territorial sea further than the present limits,
            the coastal zone would likewise be expanded, at least to the ex­
            tent that the expanded water area and the adjacent shore lands
            would strongly influence each other, consistent with the general
            definition first referred to above.41


    40 Senator M oss stated that “[tjhis makes clear that this bill focuses on the territorial sea or the area that is within
State jurisdiction, and preserves the Federal jurisdiction beyond, which is not to be considered or disturbed by the
bill at this time. If we want to do something about that later, we will have another bill, and another opportunity.”
 118 Cong. Rec. 14,185 (1972).
    41 The “general definition” to which the House Report refers is as follows: ‘“ Coastal Zone’ means the coastal
waters (including the lands therein and thereunder) and the adjacent shorelands (including the waters therein and
thereunder), strongly influenced by each other and in proximity to the shorelines of the several coastal states.” H.R.
Rep. No. 1049, supra, at 2.

                                                           258
Id. at 13-14 (emphasis added). This language in the House Report expresses an
intent that, at least in certain circumstances, the definition of coastal zone could
be extended by a change in the breadth of the territorial sea.
   The difference in the language between the House and Senate bills was re­
solved by the Conference Committee. The Conference Report stated:
           The Managers agreed to adopt the House language as to the sea­
           ward extent of the coastal zone, because of its clarity and brevity.
           At the same time, it should be made clear that the provisions of
           this definition are not in any way intended to affect the litigation
           now pending between the United States and the Atlantic coastal
           states as to the extent of state jurisdiction. Nor does the seaward
           limit in any way change the state or Federal interests in resources
           of the territorial waters or Continental Shelf, as provided for in
           the Submerged Lands Act and the Outer Continental Shelf Lands
           Act.
H.R. Conf. Rep. No. 1544, 92d Cong., 2d Sess. 12 (1972).
   Whi le it might be argued that the Conference Committee ’s adoption of the House
bill language also adopted the explanatory language in the House Report, the Con­
ference Report did not say so. Rather, it stated that the language was taken because
of its “clarity and brevity.” Moreover, the Conference Report then immediately
went on to state what is in effect a paraphrase of the Senate bill—saying that the
bill is not intended to affect the pending litigation and that the seaward limit is un­
derstood in accordance with the Submerged Lands Act and the OCSLA. Thus, the
Conference Report appeared to make a special effort to clarify that despite its choice
of the House language (which was also the language of the original Senate ver­
sion), it accepted the Senate’s understanding of the provision.42
   Moreover, the Conference Report would appear to be inconsistent with the
House Report’s language concerning extension of the coastal zone. The third and
final sentence in the Conference Report discussing the definition reiterates the
congressional concern that CZMA do nothing to affect the statutory allocation
of state and national responsibility in the area. Id. If the CZMA permitted an ex­
pansion of the coastal zone, and states asserted regulatory jurisdiction over the
extended territorial sea, however, that balance of authority would be affected 43

    42 The House bill had included various provisions extending the scope of the CZMA beyond the three-mile limit,
but the Conference Committee had rejected all the provisions The language in the House Report may therefore be
understood as indicative of the House’s intent that the CZMA extend beyond the three-mile limit in certain cir­
cumstances. See Secretary o f Interior v. California, 464 U S. 312 (1984) (discussed below). But because rejection
of these provisions indicates that this intention was not adopted by the Conference Committee, we believe the bet­
ter view is that the language in the House Report, like the provisions eliminated in the House bill, does not reflect
the final congressional intent
    43 Extension of the coastal zone to the land and sea beyond the three-mile limit would have provided the states
with additional control over OCS resources States would have the authonty under section 307(c)(3) of the origi­
nal act, 16 U S.C. § 1456(c)(3)(A), to veto (subject to a limited federal override) OCS activities that affected the
waters of the new, extended coastal zone.

                                                       259
   This understanding of the legislative history is bolstered by the Supreme
Court’s decision in Secretary o f the Interior v. California, 464 U.S. 312 (1984).
This case involved the interpretation of section 307(c)( 1) of the CZMA, 16 U.S.C.
§ 1456(c)(1), which requires federal agencies to conduct activities “directly af­
fecting the coastal zone” consistently with approved state management programs.
The Court held that the only federal activities “directly affecting” the coastal zone
were those conducted “on federal lands physically situated in the coastal zone
but excluded from the zone as formally defined by the Act,” and did not include
activities conducted beyond the three-mile seaward limit of the coastal zone, as
California had argued. 464 U.S. at 330. The Court based its holding that the am­
biguous “directly affecting” language did not apply to activities seaward of the
three-mile limit on a review of the legislative history. The Court concluded that
“[e]very time it faced the issue in the CZMA debates, Congress deliberately and
systematically insisted that no part of CZMA” was to extend beyond the three-
mile limit. Id. at 324.
   The Court noted the “repeated statements” in the floor debates in Congress that
“the allocation of state and federal jurisdiction over the coastal zone and the [outer
continental shelf] was not to be changed in any way” by the Act. Id. The Court
listed nine statements, including: “This bill covers the territorial seas; it does not
cover the Outer Continental Shelf.” 118 Cong. Rec. 14,180 (1972) (remark of
Sen. Stevens); “[T]his bill attempts to deal with the Territorial Sea, not the Outer
Continental Shelf.” id. at 14,184 (remark of Sen. Moss); “[W]e wanted to make
certain that Federal jurisdiction was unimpaired beyond the 3-mile limit in the
territorial sea.” id at 14 18S (remark of Sen. Rollings); “[T]hc Federal Govern­
ment has jurisdiction outside the State area, from 3 to 12 miles at sea.” id. at
35,550 (remark of Rep. Anderson).
   Moreover, the Court relied upon the fact that Congress “debated and firmly
rejected” four proposals “to extend parts of CZMA” to the outer continental shelf.
464 U.S. at 325. The most significant of these proposals was contained in sec­
tion 313 of the House bill, which would have required the Secretary of Com­
merce to develop a management program for “the area outside the coastal zone
and within twelve miles” of the coast. This provision, however, was eliminated
by the Conference Committee because, as explained in the Conference Report,
“the provisions relating thereto did not prescribe sufficient standards or criteria
and would create potential conflicts with legislation already in existence con­
cerning Continental Shelf resources.” Id. at 327 (quoting H.R. Conf. Rep. No.
1544, supra, at 15 (emphasis supplied by Supreme Court)). Congress also re­
jected proposals to permit the Secretary of Commerce to extend established state
coastal zone marine sanctuaries beyond the coastal zone, to require approval of
state governors when federal agencies sought to construct or to license con­
struction of facilities beyond the territorial sea,44 and to invite the National Acad­
emy of Sciences to investigate environmental hazards attendant on offshore
drilling on the Atlantic Outer Continental Shelf.45 Viewing this evidence in its
  44 118 Cong. Rec. 14,183-84 (1972).
  45 118 Cong. Rec. 14,180-81, 14,191,35.547 (1972).

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totality, the Court concluded46 that “Congress expressly intended to remove con­
trol of [outer continental shelf] resources from CZMA’s scope.” Id. at 324 47
   The Supreme Court’s understanding of Congress’ intent also applies to the pre­
sent issue. Congress’ intention to exclude outer continental shelf resources from
the scope of the CZMA, which required that the “directly affecting” provision be
applied only to activities within the three-mile coastal zone, was based on a de­
sire to limit the applicability of the CZMA to the three-mile limit. Therefore, the
legislative history, as interpreted by the Supreme Court, also indicates that Con­
gress did not intend for the coastal zone itself to be expanded beyond that three-
mile limit.
3. Subsequent Amendments
   Since 1972, Congress has passed legislation affecting the relationship between
the federal and state authority contemplated by the original CZMA. While these
amendments are of limited significance in interpreting the original CZMA, we
discuss them because they are consistent with a continuing congressional intent
to consider carefully any change in the balance of state and federal authority in
this area.
   The CZMA has been amended several times,48 and OCSLA has also been sub­
stantially modified. In contrast to the original CZMA, these amendments ex­
pressly give the states a role concerning the federal governance of activities on
the OCS. The amendments establish a complex, interconnected statutory scheme,
which contains precise and detailed limits on state authority, varying in different
circumstances. That Congress has enacted such a scheme suggests that it has con­
sidered and legislated on the role of the states very carefully, and would not de­
sire any modification of that role in the CZMA in the absence of new legislation.
We describe the amendments below'.
   The CZMA was first significantly amended by the Coastal Zone Management
Amendments of 1976, Pub. L. No. 94-370,90 Stat. 1013 (1976) (“ 1976 Amend­
ment”). The 1976 Amendment effected two important changes in the role of the
    46 We also believe that section 307(c)(3) of the original Act, 16 U.S.C § 1456(c)(3)(A), did not, as originally
enacted, apply to activities seaward of the coastal zone Section 307(c)(3) required activities “affecting land or w a­
ter uses in the coastal zone” to be subjected to review for consistency with state management programs, and was a
sister provision to section 307(c)(1) construed in Secretary of Interior v California Based on the logic and lan­
guage of that case, the C ourt’s statement that the Congress that passed the original CZMA “expressly intended to
remove control of [outer continental shelf] resources from CZMA’s scope” also applies to section 307(c)(3). We
need not decide, however, whether the scope of this provision has been changed by amendments to the Act. See
e g , Pub. L. No. 94-370, 90 Stat. 1018 (1976) (codified at 16 U.S.C. § 1456(c)(3)(B)).
    47 It is clear that Congress was concerned with more than whether a provision violated international law. The
Conference Committee rejected section 313 of the House bill because it would have created potential conflicts with
existing legislation governing the outer continental shelf, not because it would violate international law H.R. Conf.
Rep. No. 1544, 92d Cong., 2d Sess. 15 (1972). Thus, Congress’ decision to extend the coastal zone seaward only
three miles was in part the product of its conscious coordination of the CZMA with other statutory provisions gov­
erning the outer continental shelf, provisions which would be unaffected by a change in the United States’ territo­
rial sea.
    48 The CZMA has been amended at least seven times. Here, we focus on the 1976 amendment because it con­
tains the principal changes in federal and state authonty. See also Coastal Zone Management Improvements Act of
1980, Pub L. No 96-464, 94 Stat 2060 (1980)

                                                        261
states, both of which recognize and attempt to address the effects of OCS activ­
ities on the coastal zones of the states. First, section 6 requires federal licenses
for OCS exploration or development to attempt to conform to management plans
of affected states. The Secretary of Commerce may override the state’s determi­
nation that an activity is inconsistent with its plan only upon finding that the pro­
posed activities are consistent with the objectives of the CZMA or are necessary
in the interest of national security. 16 U.S.C. § 1456(c)(3)(B). Second, section 7
of the 1976 Amendment establishes a Coastal Energy Impact Program that pro­
vides financial assistance to states to meet needs resulting from and reflecting the
impact of coastal energy activities, including OCS activities, which for technical
reasons must be sited in or near the state’s coastal zone. 16 U.S.C. § 1456a.
   In 1978, Congress further modified the allocation of federal and state respon­
sibilities through enactment of the Outer Continental Shelf Lands Act Amend­
ments of 1978, Pub. L. No. 95-372,92 Stat. 629 (“OCSLA Amendment”). This
amendment substantially changed the original OCSLA by including numerous
provisions requiring state participation in OCS activities.49
   Thus, the amendments to both the CZMA and the OCSLA establish a com­
plex and detailed statutory scheme concerning the limits of state authority to af­
fect OCS activities.50 Overthe years, Congress has provided the states with grants
to respond to the effects of OCS activities, with the authority to review and make
recommendations concerning OCS activities, and with the power to veto OCS
activities subject to limited federal override. These detailed amendments to the
CZMA and OCSLA are thus consistent with a congressional understanding of a
coastal zone and state authority which would not automatically expand with the
expansion of the territorial sea.
   To summarize, on the basis of the purpose, structure and legislative history of
the CZMA, we conclude that Congress did not intend the coastal zone to be af­
fected by an expansion of the territorial sea under international law. The language
in the House Report might suggest a contrary conclusion, but that language was
not accepted by the Conference Committee and, in any case, is outweighed by
    49 The OCSLA Amendment provides for various levels o f state participation in the process of developing off­
shore oil. Secretary o f Interior v. California, 464 U S. at 337. The Secretary of Interior must, while preparing a
schedule for proposed lease sales on the OCS, solicit comments from states that might be affected, and must ex­
plain, in a report to Congress and the President, why a state recommendation was not accepted. 43 U S.C. § 1344(c)
& (d) Second, the Secretary must accept slate recommendations concerning the size, timing or location of pro­
posed lease sales, if he determines that they reasonably balance national and state interests 43 U S C § 1345(a) &
(c). Third, an applicant’s exploration plan must certify that the proposed activities are consistent with slate CZMA
management programs unless the Secretary o f Commerce finds that the proposed activities are consistent with the
objectives of the CZMA or are necessary in the interest of national security 43 U.S.C. § 1340(c) Finally, the Sec­
retary of Interior must accept state recommendations concerning development and producuon plans if they provide
a reasonable balance between state and national interests. The plans must also be consistent with state CZMA man­
agement plans and will only be approved, absent state consent, if the Secretary of Commerce finds that the pro­
posed activities are consistent with the objectives of the CZMA or are necessary for national security. 43 U.S.C. §
1351
    50 Writing of the relationship between the OCSLA Amendment and CZMA, the Supreme Court stated that “Con­
gress has thus taken pains to separate various federal decisions" in the process o f granting authonty to conduct OCS
development and to subject only the third and fourth stages to review for consistency with state management plans.
Secretary o f Interior v California , 464 U.S. at 340.

                                                        262
    the structure of the Act and the legislative history, as interpreted by the Supreme
    Court.
       We recognize, however, that this conclusion is not free from doubt, and that a
    court could construe the coverage of the CZMA—or other statutes which refer
    to the territorial sea—as expanding with the extension of the territorial sea. Such
    a result can be avoided. As discussed, whether the coverage of a statute which
    refers to the territorial sea is affected by the extension of the territorial sea is a
    question of legislative intent. Therefore, Congress could foreclose an individu­
    alized judicial assessment of each federal statute by enacting legislation which
    negates the expansion of the coverage of any domestic statute by the extension
    of the territorial sea for international purposes. An express declaration by Con­
    gress that the presidential proclamation extending the territorial sea has no effect
    on the operation of domestic statutes which rely upon the concept of the territo­
    rial sea would provide a simple and decisive rejoinder to any claim of automatic
    expansion. Thus, although we do not believe that the coverage of the CZMA
    should be construed to expand as a necessary result of the presidential procla­
    mation, we recommend that the President seek legislation to conclusively pre­
    clude any contrary decision on the CZMA or any other statute by the courts.
                                        Conclusion
       We believe that the President may make an extended jurisdictional claim to
    the territorial sea from three to twelve miles by proclamation. We also find ven­
    erable historical evidence supporting the view that the President’s constitutional
    role as the representative of the United States in foreign relations empowers him
    to extend the territorial sea and assert sovereignty over it, although most such
    claims in our nation’s history have been executed by treaty. It is more doubtful,
    however, that Congress, acting alone, may extend the territorial sea beyond the
    present boundary for international purposes.
       The domestic effect of the extension of the territorial sea on federal statutes
    that refer to the territorial sea must be determined by examining Congress’ intent
    in passing each relevant statute. We have concluded that the better view is that
    the expansion of the territorial sea will not extend the coverage of the Coastal
    Zone Management Act, the statute which was identified to us as presenting spe­
    cial concern. However, we recognize that the effect of the proclamation on the
    CZMA and numerous other federal statutes will continue to be uncertain until fi­
    nal judicial resolution. We therefore recommend that the President seek legisla­
    tion providing that no federal statute is affected by the President’s proclamation
    to extend the breadth of the territorial sea from three miles to twelve miles.
                                                         D o u g l a s W . K m ie c
                                                  Acting Assistant Attorney General
                                                       Office o f Legal Counsel


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