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cases involved ministerial or clerical functions rather than executive responsibilities which require discretion and judgment.

In cases where judgment is required, the Court has yielded to the decisions of the executive branch. In 1840, the decision of the Secretary of the Navy to withhold payment from a widow whose claim was based on a resolution by Congress was upheld by the Court.27 Had the Secretary mechanically followed the direction of Congress, treating the matter as a ministerial duty, the widow would have received two pensions: one from the specific resolution adopted on her behalf, and a second from a general pension bill. The Court held that "interference of the courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief . . . ."28 In Reeside v. Walker, 29 the Court again distinguished between ministerial and executive actions. A mandamus is "only to compel the performance of some ministerial, as well as legal duty. ... When the duty is not strictly ministerial, but involves discretion and judgment, like the general doings of a head of a department... no mandamus lies.”30

The expenditure of appropriations is often more than a mere ministerial act, such as paying a claim or entering the minutes of a court. The President has budgetary responsibi'ities to effect economies and avoid deficiencies, as well as far-rci.ching responsibilities under the Employment Act of 1946 for conditions in the national economy. Presidential judgment that a Nike-Zeus anti-missile system contains too many technical weaknesses to justify deployment, that additional funds appropriated for the Air Force would strain the economy, or that production of B-70 bombers is unwarranted in view of existing missile capability is no mere ministerial act. Such decisions require discretion and judgment, thus severely limiting the appropriateness of judicial interference.

Congressional deference to executive discretion was evident in the 1962 dispute concerning the RS-70 bomber. The House Armed Services Committee "directed" the Secretary of the Air Force to spend not less than $491 million toward production of the aircraft-a figure $320 million higher than the Administration's request.31 President Kennedy, insisting upon "the full powers and discretions essential to the faithful execution of [his) responsibilities as President and Commander in Chief," was successful in turning back this legislative challenge. The bill was changed so that the President was "authorized” to spend the funds, rather than directed.32 If Congress hesitated

27. Decatur v. Paulding, 39 U.S. (14 Pet.) 497 (1840).
28. Id. at 516.
29. 52 U.S. (11 How.) 272 (1850).

30. id. at 290; see Brashear v. Mason, 47 U.S. (6 How.) 92, 102 (1848); United States ex rel. Tucker v. Seaman, 58 U.S. (17 How.) 225, 230 (1854): United States ex tel. Goodrich v. Guthrie, 58 U.S. (17 How.) 284, 304 (1854).

31. Ilot's Codu. Ox RJED SERVICES, AUTHORIZING APPROPRIATIONS FOR AIRCRAFT, MISSIES, AND NAVAL VESSELS, H.R. REP. No. 1406, 87th Cong.. 2d Sess. 9 (1962). • 32. 108 Coxc. Rec. 4694 (1962); Act of April 27, 1962, § 1, 76 Stat. 55.

to push toward a confrontation with the President in this case, the Court would be no more combatant. This is clearly a question to be resolved by the political branches.

Inherent Powers of the President Theodore Roosevelt's theory of inherent executive power—that the President is limited only by specific constitutional or statutory restrictions33_is said to have been "repudiated by the United States Supreme Court as contrary to the Tenth Amendment, viewing its words of reservation of powers not delegated as precluding inherent executive puwer."34 Under this interpretation, the President could not assume the authority to impound funds.

The case in question, Kansas v. Colorado,35 concerned an effort by. Kansas to restrain Colorado and certain corporations from diverting water from the Arkansas River. The United States filed an intervening petition, claiming that it retained the right to control the waters of the river. The Court dismissed the intervening petition, holding that Congress was restricted to the enumerated powers of the Constitution-a frict "made absolutely certain by the Tenth Amendment"30

and rejected the claim by Kansas that the Colorado project had been detrim ’ntal to the Arkansas Valley in Kansas. This case was obviously restricted to an examination of the breadth of congressional powers in an interstate dispute. Presidential discretion over funds was not at issue. In fact, at no point was executive power even discussed.

Today, Kansas v. Colorado lacks constitutional significance in regard to either federal questions or to executive power. Within a few decades the Court came to recognize the need for a more generous interpretation of national powers over inland waterways.37 The notion that the tenth amendment contained substantive powers for the states was deflated by several decisions. In 1920, Justice Holmes denied that the treaty power was restricted in any way "by some invisible radiation from the general terms of the Tenth Amendment."38 A decade later the Court held that the tenth amendment added nothing to the Constitution as originally ratified,39 and in 1941 Justice Stone dismissed the tenth amendment as "a truism," re

33. ROOSEVELT, AN AUTOBIOGRAPHY 347 (The Works of Theodore Roosevelt, Vol. 20. 1926).

34. Goostree, supra note 16, at 40. 35. 206 U.S. 46 (1907). 36. Id. at 89-90. 37. Sce Oklahoma cr rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508 (1941): United States v. Appalachian Elec. Power Co., 311 U.S. 377 (1940).

38. Missouri v. Holland, 252 U.S. 416. 134 (1920).
39. United States v. Sprague, 282 U.S. 716, 733 (1931).

phrasing it to read "that all is retained which has not been surrendered."40

A Civil War case'l is invoked" to argue that the Court has rejected the theory of inherent executive powers, and consequently the right to impound funds. Great emphasis is placed on the Court's statement that “We have no officers in this government, from the President down to the most subordinate agent, who does not hold office under the law, with prescribed duties and limited authority."43 The issue giving rise to this statement involved a financial arrangement between a contractor and the Secretary of the Treasury, John B. Floyd. The contractor, lacking sufficient capital to carry through to the completion of the order, was allowed to draw time-drafts and have these purchased by his suppliers to provide interim assistance. The Government subsequently accepted drafts of $5,000,000, but over a million dollars remained unpaid. Holders of unpaid drafts contended that Secretary Floyd's acceptances were binding on the United States.

The Court denied that Floyd possessed constitutional or statutory authority to enter into these agreements. It was in this context that the Court said that all public officers, "from the President down to the most subordinate agent," hold office under the law "with prescribed duties and limited authority." This is readily distinguishable from the practice of impoundment. The Constitution clearly prohibits expenditures which exceed appropriations: "No Money shall be drawn irom the Treasury but in Consequence of Appropriations made by ...."44 Contemporary regulations are even more explicit:

No officer or employee of the United States shall make or authorize an expenditure from or create or authorize an obligation under any appropriation or fund in excess of the amount available thercin; nor shall any such officer or employee involve the Government in any contraci or other obligation, for the payment of money for any purpose, in advance of appropriations made for such purpose, unless such con

tract or obligation is authorized by law.43 : Thus, an executive officer could not, on his own initiative, obligate appropriations and increase expenditures. In impounding funds, however, the President prevents rather than creates obligations, and reduces rather than increases expenditures. The Constitution offers no guidance on the practice of spending less than Congress appropriates, unless we interpret the President's duty to “take care that the laws be faithfully executed” as absolutely binding, excluding the exercise of judgment and discretion.

The 1952 Steel Seizure Case*6 is also cited to demonstrate that the

40. United States v. Darby, 312 U.S. 100, 124 (1941).
41. The Floyd Acceptances, 74 U.S. (7 Wall.) 666 (1868).

42. Goostree, supra nole 16, at 40; Small. Constitutional Power of President to Order the Impounding of Appropriated Funds 9 (Library of Congress Legislative Reference Service, Aug. 25, 1959).

43. 74 U.S. at 676-77.
44. U.S. Coxst. art. I, § 9.
45. 31 U.S.C. $ 665 (a) (1964).
46. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

President lacks inherent powers to impound funds, and has been interpreted as "seemingly conclusive upon the question of inherent powers." Although different opinions were written by the Justices to strike down the seizure, “there was no disagreement among the six as to the lack of inherent Presidential powers. The consensus was that the investiture of the executive power in the President combined with the 'faithful execution' (clause) gave him no authority of a legislative nature."47 .

The implication, then, is that the impoundment of funds is an exercise of legislative power. One can just as easily argue, however, that it is of an executive nature. Moreover, the Steel Seizure Case was badly splintered-five Justices concurring and three dissenting. To locate a "consensus” among these different statements is difficult indeed. Only Justices Black and Douglas adhered to a strict view of separated powers, restricting the President to statutory and constitutional grants of power. 48 The other four concurring Justices and the three dissenters were careful to avoid generalizations on the boundaries of executive action.

Thus, iustice Frankfurter concurred in the result of this decision but considered it imprudent to inquire into the more general areas of Presidential powers and their relationship to those of Congress. 40 Justice Jackson cautioned that the decision to strike down the steel seizure should not become the occasion "to circumscribe, much less to contract, the lawful role of the President as Commander in Chief," especially when "turned against the outside world for the security of our society."50 Justice Burton distinguished tl.e steel seizure from a situation in which emergency powers might be invoked, as in the case "of an imminent invasion or threatened attack," or of "a mobilized nation waging, or imminently threatened with, total war."51 In the last of the concurring opinions, Justice Clark maintained that the Constitution "does grant to the President extensive authority in times of grave and imperative national emergency," and it mattered not whether one called this residual, inherent, moral, implied, aggregate, or emergency authority.52

The three dissenters adopted a broad view of Presidential power by supporting the seizure. Thus, seven out of nine Justices accepted a view of executive power which went beyond the mere exercise of duties specifically granted by the Constitution and by statutes.

47. Goostree, supra note 18, at 40; see Davis, supra note 17, at 48-51.
48. 343 U.S. at 535, 630.
49. Id. at 595, 597.

Id. at 645.
Id. at 659 (footnote omitted).
Id. at 662.

Separation of Powers Impoundment of funds is also regarded53 as violative of the classical doctrine of separation of powers as described by Chief Justice Marshall: ' "The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law ...,"54 One can then conclude that if Congress makes the law (in this case an appropriations bill) and the President signs it, it is his constitutional obligation to spend the funds as directed

Frequently ignored is Marshall's immediate qualification: “[B]ut the maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily."55 The act in question, authorizing the courts to make and establish rules for the conduct of their business, was accordingly held to be compatible with the theory of separated powers.

A pattern was thus set for future decisions. After delivering highsounding tributes to the genius of separated powers, the Court would regularly adopt practical and workable definitions. For instance, in 1891 the Court declared it "a principle universally recognized" that Congress could not delegate legislative power to the President.56 The Court then upheld the delegation. In 1928 it: Court said it would be "a breach of the National fundamental lar;" if Congress were to transfer its legislative power to the Presider t.57 Again the Court upheld the delegation. This record, repeated by other decisions, has prompted a syllogism which runs roughly as follows: Legislative power cannot be constitutionally delegated, however, it is sometimes necessary for Congress to delegate certain powers; therefore the power delegated is not legislative.s

A passage from a 1880 decision is often used to suggest that the Court thinks of separated powers in strict terms:

It is believed to be one of the chief merits of the American system of written constitutional law, that all the powers intrusted to government, whether State or national, are divided into the three grand departments, the executive, the legislative, and the judicial. That the functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of the system requires that the lines which separate and divide these departe

ments shall be broadly and clearly defined.59 Nevertheless, this decision, involving the power of the House of Representatives to punish for contempt, recognized that there is no clean separation between powers or departments. The power to punish, though primarily judicial, could at times be exercised by the legis

53. Davis, supra note 17, at 46-47. 54. Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 44 (1825). 55. id. 56. Field v. Clark, 143 U.S. 649. 692 (1891). 57. S.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406 (1928). 58. CUSHMAN, THE INDEPENDEYT REGULATORY COMMISSIONS 429 (1941). 59. Kilbourn v. Thompson, 103 U.S. 168, 190-91 (1880).

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