view of testimony that we have heard since, that probably the reason for that was that he tended to confuse problems of programing expenditures, such as you mentioned that arose under early appropriation acts that were open-ended, and problems of impounding or otherwise reserving funds that were specifically appropriated.

Where your position and his tend more to coincide is in the area of the war power and the foreign affairs power. That puzzles me a little bit. I had talked with Mr. Weinberger on that.

First of all, let me talk about your example of President Jefferson being troubled that Congress appropriated specific salaries for particular ambasadors rather than giving him money to pay ambassadors. That seems to me a rather narrow point, because the Constitution quite specifically tells the President to appoint and receive ambassadors and that privilege appears to have a constitutional foundation which some other appropriation for foreign affairs purposes, foreign aid or what have you, would not quite have. Would you agree with that?

Mr. REHNQUIST. No, I do not think so. I am just trying to think the thing through. The President is authorized to appoint ambassadors and other public ministers, with the concurrence of the Senate, with confirmation by the Senate.

Professor BICKEL. That seems to me to slice that function out of the more general ones which are there by implication in the Constitution and to enable him to say, "You cannot appropriate a salary for a given ambassador and enable me to use it only for him and thus put pressure on me to retain him and not use it for some other ambassador when I think I no longer want to have one in Morocco and send one to Tunisia. You cannot tell me in your appropriation, in effect. I either have one in Morocco or I cannot have one at all." That seems to me a more plausible case for the President to say, when you appropriate, we ought to give $100,000 for foreign aid to Tunisia and I decide next year that I do not want to, that Tunisia has not been nice to us. I can override your will on that because it is foreign affairs, where as if it is for a bridge in Kentucky, I cannot override you on that.

Mr. REHNQUIST. This is what the Constitution says:

He shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.

Now, it seems to me that that language by itself, unless there is something peculiar about the foreign affairs power, would give him no more claim to specificity of the salaries of ambassadors than it would to Supreme Court justices.

Professor BICKEL. The Supreme Court is obviously a separate rationale, but it might give him the same claim with respect to specificity of salaries of executive officers.

Mr. REHNQUIST. But he did not choose to make that claim.

Professor BICKEL. Maybe Congress did not choose to make that a case. But it seems to me a different case from what is now the very broad area of foreign relations, where all kinds of monies are appropriated for all kinds of purposes, and if that whole area is put in

a special position, this is a rather slender foundation to rest that argument on.

Passing on to the war power, I am even more puzzled. It is difficult for me to see why, as Commander in Chief, with his independent powers to command the Army and the Navy and the Air Force, why that means that if Congress appropriates money for 50 bombers and he decides he does not need 50 bombers, even though Congress appropriates it in mandatory fashion, which is the only real case we are talking about, he can override it. Whereas in what seems to me an even more crucial case, from the point of view of the Commander in Chief function, if Congress fails to appropriate money for the 50 bombers and he figures he needs them, he cannot generate the money and spend it. Either way, it seems to me the Commander in Chief is subject to the will of Congress. He commands whatever the Congress provides or fails to provide.

Mr. REINQUIST. You have a specific thing in the Constitution that no money shall be withdrawn from the Treasury unless appropriated by Congress. Certainly a more general power such as the power of the Commander in Chief would not be construed, I should not think, to override that. But you do not have the same categorical direction at all in the Constitution as to whether the President must spend where Congress has appropriated. That is much more doubtful.

Professor BICKEL. One wonders about that. That brings us to the basic constitutional position. But one wonders whether the power of Congress to make laws, which is stated, of course, in substantive terms and implies the power to spend the money that is appropriated and appropriate the money necessary to carry out such purposes. The very distinctly stated duty of the President to execute laws, just as distinct as the prohibition against spending money that is not appropriated by law, referring it back to section 8 of article 1 for the affirmative power of the Congress-the distinct duty of the President to execute the law is just as distinct as the prohibition against spending unappropriated money. One wonders why that does not mean that he is to carry out the laws of the Congress. When Congress says spend $50 million, he spends $50 million, because that is not justbecause behind that is always, in the constitutional scheme, a substantive policy, which is the law. That is really the law which he is supposed to carry out in substantive policy.

Now, you know, in modern times, problems have arisen and a practice has arisen that indicates that that is not enough. Those simplicities are not enough. Problems arise after the money has been appropriated and some mind has to be applied to them and a judgment has to be made. And it is that practice that we are here dealing with. But the original constitutional position seems to me to go across the board and to be all in favor of Congress.

Mr. REHNQUIST. Well, to say that because the President is required to take care that the laws be faithfully executed, that he simply has a ministerial duty to carry out whatever law Congress has passed regardless of the fact, say, that it may, in his opinion, and quite justifiably, infringe on some constitutional prerogatives of his, is not an idea you would subscribe to.

Professor BICKEL. No, I certainly would not. Nor did I suggest that.

Mr. REHNQUIST. But you are saying that the authority to take care that the laws be faithfully, or his direction to take care that the laws be faithfully, executed is by itself some sort of direction to him to simply carry out the will of Congress without regard to

Professor BICKEL. Certainly; it is the only foundation upon which one can argue that when Congress passes a statute establishing Social Security Administration and medicare or something, and says, this is the policy and this is how we want people taken care of-the only foundation for saying that the President, after having vetoed the law-well, take a specific example. Congress passes the Internal Security Act of 1952, or the Taft-Hartley Act, and the President vetoes it and Congress overrides his veto. The only foundation for saying that the President can't impound that policy is that the Constitution says he is charged with taking care that the law is executed. Now, that does not mean he does not have any discretion, he does have an Executive function, nor does it mean that Congress can override the Executive function. They cannot come in and tell him how to execute it or monitor his directives to his subordinates. As you say in one opinion, Congress can't come in between the President and the Commissioner of Education. It can't speak to the Commissioner of Education over the President's head. It can't, in other words, shortcut the Executive function. But it sets the policy. That is what is meant by law and the position is that the President has to carry it out or Executive discretion reaches farther than I am sure you would argue that it ought to reach.

So my problem is that I have difficulty seeing where the power of the Commander in Chief or the power of foreign relations as such cuts into this general scheme and allows for the argument that whereas a mandatory appropriation in the domestic field would have to be obeyed, a mandatory appropriation to buy tanks or to hand over $50 million to Israel or Saudi Arabia does not have to be obeyed.

Mr. REHNQUIST. Well, I think it gets difficult to probably make an impression on one or the other in the abstract. I do think it is clear beyond dispute that, for instance, a number of Senators during the 1963 debate made a point that the power of Congress to compel spending in the national defense area, where you are talking about whether you going to have additional planes or not, is not the same as its authority in the domestic field. And I suspect that I could cite examples from either the foreign affairs field or from the defense field where Congress can't compel the President to act, whether it be spending money or otherwise, to the same extent it can in the domestic field.

Now, given that difference

Professor BICKEL. If I may interrupt, Mr. Rehnquist, I would dispute that except as you come to very specific functions that can be defined as those of the Commander in Chief, just as very specific functions can be defined as those of an Executive which the separation of powers prevents Congress from taking over. Congress can't tell you who should command a regiment, who should command a division. It can't tell you how to command those troops tactically or, if you will, strategically. But I do not follow that this has a sort of vague, continually outgoing reach. It has been the fashion since World War II, I think, to regard the foreign affairs and war power

as sort of interminable vistas that reach out into an undefinable
future and I think one of the salutary things about the day we are
living in now is that people are reexamining that and reexamining
the rather vague, general, and indiscriminate statements of the past
that of course, the Commander in Chief, or of course, the President is
in charge of foreign relations, and he can do virtually anything.
Mr. REHNQUIST. I fully agree with you.

Professor BICKEL. Maybe we had better stop right there.
Mr. REHNQUIST. Maybe we had.

Professor WINTER. I must say, I tend to disagree with my colleague Bickel that it is a very narrow range of things. It seems to me that in terms of separation of powers, Congress in the Cooper-Church amendment was getting very, very close to making tactical decisions for the President and I can well imagine a number of appropriations in the field of military policy that might seem to me to infringe on the presidential power of the Commander in Chief; policy directions which, if they were made without appropriations, the President ought to ignore the fact that they are connected with an appropriation seems to me not to make any difference whatsoever.

Professor BICKEL. I entirely agree. It makes no difference if they are connected with appropriations. The Constitution does not state an appropriation power. This is one of Mr. Weinberger's troubles yesterday. He tended to derive the President's power from the constitutional negative provisions, that you cannot spend money without an appropriation. It says appropriated by law. The Constitution provides for Congress to pass laws, not to make appropriations. And approriations are one form of law that Congress can pass. If Congress has any power, it has the power to pass a law and it can attach an appropriation to a law or not attach an appropriation to a law, whichever it chooses to do. But the basic power is the power of section 8, article 1. And the appropriation does not much add to it.

Senator ERVIN. I would like to state that I agree with Professor Bickel and Professor Miller. I opposed the Cooper-Church amendment on the ground that I think after the Congress gives the President the power, as it did in the Tonkin Gulf resolution, to put the forces of the United States into combat, the power to direct the tactical operation of those troops belongs to the President. And Congress, I said, was attempting to usurp and exercise some of the functions mandated to the Commander in Chief. That is one of the manifestly wise provisions of the Constitution, because if it had the Commander in Chief in the possession of the power along with 100 senators and 435 congressmen sharing that power, we would have a situation where one of them would command the army to advance and another would command the army to retreat and the third would command it to stand still.

But I can't agree that there is any difference between this question in the domestic field and the fact that the President is Commander in Chief. Section 7 of article 1 says among other things, that the powers of Congress are to raise and support armies, to provide and maintain a navy, to make rules for the Government and regulation of the land and naval forces.

The only power that the President has as Commander in Chief is to direct the operation of the Armed Forces, not the appropriations

that are made for the maintenance of the Armed Forces. And also, I think that the necessary and proper clause deals with this problem. It says Congress shall have the power to make all laws which are necessary and proper for carrying into operation the foregoing powers and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof. In other words, I think Congress can pass laws for the purpose of carrying into effect the powers vested by the Constitution in the President.

Mr. REHNQUIST. No question. For example, the establishment of cabinet departments has always come by legislation.

Senator ERVIN. Many people take the position that the President has almost supreme authority in the field of foreign relations, but I think the Constitution gives him the power, expressly to receive and appoint ambassadors, to nominate ambassadors and to receive foreign ambassadors, foreign ministers, and so forth, and impliedly gives him the power to be the mouthpiece of the United States in dealing with foreign countries. I think Congress' power of the purse applies to foreign affairs just as much as it does to domestic affairs. Mr. REHNQUIST. Senator, certainly so far as the power of the purse being the power to insist that money be appropriated before it is spent, I do not have the slightest doubt and I take it that no one who has studied the matter would. I think it is a more difficult question when you start talking about the power to compel money to be spent. Let me, if I might, pose an example that would certainly trouble me and I would hope it would trouble those who are partisans of the other view. Supposing Congress appropriates a million dollars and says it has to be spent to equip all the people in regiment "A" with blue uniforms and the President decides he does not want blue uniforms on regiment "A." Now, I think, clearly within his power as Commander in Chief, he has a right to prescribe the mode of dress of that regiment. Can he be compelled to spend that money even though he is perfectly free under the Constitution to refuse to use the proceeds of it?

Senator ERVIN. I respectfully disagree with you, because I think the power to make rules for the Government and regulation of the land and navy forces includes the power to say what kind of uniforms they should wear if Congress should so specify. I think the President is authorized to direct their fighting and authorized to direct them when they are called out to suppress insurrections. I think that is the power of the Commander in Chief, but not to determine whether their uniform shall be blue or some other color.

Professor BICKEL. It seems to be something going more to the heart of the function of the commander is discipline, is it not? Yet the Constitution happens to provide on that subject. It is Congress which decides that a breach of discipline gets tried by a jury of a man's peers or gets tried by six majors and one colonel or what the penalty for it is or whatever. Because Congress is given that power specifically by the Constitution. I think all that is reserved is what you can define as the power to command and what is left of the power of command after you carve out the things that belong to Congress. Mr. REHNQUIST. I do not agree with the view that power to make