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Mr. UDALL. No, I think Congress has not cranked itself up because it has been too fragmented. Congress is a creature of habit and it is doing things in many ways the same way it did a long time ago. One of the grand old men of the Senate was Senator Carl Hayden from Arizona. He served longer in Congress than any man in the history of the Republic. He is retired, in his ninety's, out in Arizona now. I heard him tell this story several times, his story of impoundment, Senator. You have probably heard him tell it. This was, I think, his first term in Congress back in 1914. He got some money for a bridge out in Arizona on an Indian reservation. The Indian Bureau and the administration did not want the bridge, so they did not spend it. He always used to tell it with a chuckle, you know. He was not unhappy about it. In fact, his attitude, I always thought, was too lenient on these matters. If the bridge was really important, the money should have been spent. He sort of took the lenient view that the Executive has this power and ought to use it.

That is what we are discussing here today, just how much power does the Executive have, and just what are the checks and balances on that power?

Senator ERVIN. If I may interrupt, I am happy to note that Representative Charles Bennett has joined us. He is one of our witnesses today. It will be appropriate to hear his statement at this time.



Mr. BENNETT. Thank you very much. I would like to follow up on what you said, Mr. Secretary; that is sort of an issue in the House. You have done a wonderful job for our country. I would like to follow up on one thing you said before getting into my statement.

That is in briefing the law with regard to the matter that I am interested in, the continuation of the building of the Cross-Florida barge canal, I have found out that there is no basis for giving the President any such authority in ending projects. In my opinion, most of the decisions indicate there is no basis for even retarding projects substantially, with the exception of certain statutes that have been passed. So I would think this committee might look into those statutes. There have been special statutes passed. They do not affect the canal, because the canal is not a question of holding up funds or impounding of funds. It is a question of ending a project.

Mr. Chairman, I deeply appreciate this opportunity to appear before your Subcommittee on "Executive Impoundment of Anpropriated Funds.” This is an important subject because it is timely and goes to the roots of our form of government; and I congratulate the chairman and subcommittee for considering it. Incidentally, I have handed out a marked copy of a much longer statement. I do not know whether I have a copy for Mr. Udall or not, but if you have another marked copy, it is easier to follow.

I have underlined portions of it and I am going to read these portions. I ask unanimous consent to put all the statement in.

Senator ERVIN. Let the record show the entire statement will be placed in the record immediately after Representative Bennett's testimony.

Mr. BENNETT. I will just read the portions which I have underlined, which will be much briefer.

A learned lawyer, to wit, the present President, President Nixon, applying to the New York bar in December 1963, wrote:

The principles underlying the government of the United States are decentralization of power, separation of power and maintaining a balance between freedom and order.

Above all else, the Framers of the Constitution were fearful of the concentralization of power, separation of power and maintaining a balance besolution in this respect is that they were able to maintain a very definite but delicate balance between the Federal Government and State Government, on the one hand, and between the Executive, Legislative and Judicial Branches of the Federal Government on the other hand.

This same learned lawyer, who, incidentally, was admitted to the bar of the State of New York and was later elected President of the United States in the 1968 elections, recently completely abrogated his thesis in the 1963 paper with an edict not unlike a Catherine de Medici or Louis XIV decision of the 16th century.

He destroyed the "delicate balance between the Federal Government and the State government” of Florida, and he also dictatorially repealed an authorized law of Congress by "permanently” halting the Cross-Florida barge canal. He did not even give notice to the public or to Congress that he was going to do it, much less allow any objective presentation of views on the subject.

The 18th century French writer Montesquieu wrote in “The Spirit of the Laws" on the Constitution of England:

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty ; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Later, Justice Brandeis said the doctrine of separation of powers was adopted by the convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power."

This brief discusses the President's edict to terminate the CrossFlorida barge canal and shows that he was misled on the law backing his decision. There is absolutely no law for such a decision.

The canal case is a current classic in the “impoundment of funds” field.

The responsibility of the President of the United States is as stated in section 3 of article 2 of the Constitution to “take care that the laws be faithfully executed." He has the power of veto in the process of enactment or repeal of a law (sec. 7 of art. 1); and personally, I would favor an item veto, although I realize it would require a constitutional amendment to achieve that; but after a bill is signed into law and appropriations are made the President cannot repeal the law himself without congressional action in repealing; and the President must execute or carry out the duly enacted law. He can, of course, recommend that the law be repealed. No

principle of American constitutional government is more fundamental than this to our heritage or more clearly stated in our Constitution.

One of our Founding Fathers, President James Madison expressed it well in the Federalist Papers (No. 47) when he wrote:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

The Cross-Florida barge canal was specifically authorized in 1942 by Public Law 77–675. Although its value to the defense needs of our country were recognized in its authorization, the shortage of manpower for its construction during World War II postponed the appropriations needed for its commencement. But the appropriations have been made continuously ever since 1964 and now total $60 million; and the project is now more than a third complete.

Last year in the House report on the appropriations bill the following statement was made:

The Committee has included in the bill the $6 million including carryover funds, proposed in the budget to continue construction of the project ... the committee does not feel that it would be warranted, in the light of the current facts available, in delaying construction of the project which was started in 1964 and is now about 30 percent complete ... Considering, therefore, the status of the construction and the need for the project, the committee recommends that the construction work continue and that every effort continue to be made to minimize any adverse effects on the environment, ecology, and fish and wildlife in the area.

It is not proposed to discuss here the merits of the canal; however, the facts are that about $50 million have been spent on this canal: (1) Which the Joint Chiefs of Staff supported to provide “an additional and shorter line of communication between the gulf Coast and the east Coast” that would "reduce exposure of shipping to submarine attack" and (2) which several independent studies found to be justified for economic and job producing reasons, and (3) which many geologists and ecologists, and all congressional public hearings, open to all points of view, gave a clean bill of health to on ecological grounds.

On January 19, 1971, the President issued a press release in which he said, “I am today ordering a halt to further construction of the Cross-Florida barge canal," which has been construed to be a termination.

After repeated requests to the White House, on February 25, 1971, the White House staff furnished the following statement on the legal authority of the President to terminate the Cross-Florida barge canal without congressional approval, reciting that this was the opinion of the Department of Justice.

An appropriation of funds for a particular project or activity is ordinarily regarded as permissive in nature and not as equivalent to a direction that such projects or activity be undertaken or that such funds be spent. See 42 Ops. A. G. No. 32, p. 4 (1967); McKay v. Central Electric Power Cooperative, 223 F. 2d 623, 625 (C.A.D.C. 1955).

The only court decision cited to uphold the quoted conclusion was McKay v. Central Electric Power Cooperative (an REA Cooperative). This case does not in any way support the President's

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action on the canal; because, unlike the canal which was specifically authorized and specifically appropriated for, the REA contracts in the McKay case depended-solely for any specific performance on such contracts—upon the language of a general appropriations law for electrical transmission facilities, while the law made no reference whatsoever to particular projects or particular contracts. The court observed that the claimants might, despite the court's ruling on specific performance of the contracts, sue the Government for breach of contract in another suit.

Clearly, the above cited case is in fact authority against the President having such authority when the project involved, such as the canal, is both authorized and appropriated for by specific provision of law. This would be true whether a suit is for specific performance or for breach of contract.

The only other authority relied upon by the administration for its position was the 1967 opinion of Attorney General Ramsey Clark for upholding the power of the President to impound Federal-aid highway funds before they had been obligated by approval of a specific qualifying project. This impoundment was not to end any project but only to temporarily reduce the level of spending to curb inflation. No contractual obligations of the United States were involved in any way. The Attorney General said:

The Courts have recognized that appropriation acts are of a fiscal and permissive nature and do not in themselves impose upon the Executive Branch an affirmative duty to expend the funds. Hukill v. United States, 16 C. Cl. 562, 565 (1880); Campagna v. United States, 26 C. Cl. 316, 317 (1891); Lovett v. United States, 104 C. Cl. 557, 583 (1945), affirmed on other grounds, 328 U.S. 303 (1946); McKay v. Central Electric Power Cooperative, 223 F. 2d 623, 625 (C.A.D.C. 1955).

The Congressional Reference Service paper "Impoundment by the Executive of Funds which Congress Has Authorized It to Spend or Obligate” at page 15 observes of the above Attorney General's opinion that the cited cases do not "sustain the broad proposition for which they were cited."

They do not sustain it in any sense whatsover and I will discuss each case briefly.

In th Hukill case, above cited, the United States had enacted an appropriations law which would pay postal employees for services rendered in the South during the Civil War, under certain circumstances; and then provided that any unexpended balance would be turned over to the Treasury in 2 years. After the 2 years expired, Hukill attempted to enforce the payment terms of the appropriations law. Although holding against Hukill because he had not shown that he had not theretofore been paid for the same services by the Confederacy, the Court also held that if he had not been so previously paid he could have recovered under the above statute. In deciding this, the Supreme Court said : :

Every appropriation for the payment of a particular demand, or a class of demands, necessarily involves and includes the recognition by Congress of the legality and justice of each demand, and is equivalent to an express mandate to the Treasury officers to pay it, .

I am quoting from a Supreme Court decision. That is a leading case in its field, but a leading case against the President, not for him.

This recognition is not affected by any previous adverse action of Congress; for the last expression by that body supersedes all such previous action.

The Hukill case is clearly not a case that supports as legal the action of the President in the canal matter. To the extent that it is in point, it would support the continuation of the canal under the duly enacted appropriations laws even if there were no prior authorization law. However, the canal has no deficiency in authorization and does not need to rely on the Hukill case, which relied upon a statutory authorization.

The Campagna case above cited, is a case in which a marine band musician sued for a salary of $23 a month as distinguished from a rate of $17 since the appropriations statute involved provided for “30 musicians at $40, eight at $26, and 15 at $23 per month each, $9,000.” Insofar as there was a project in the Campagna case—the hiring of musicians—there was no interruption of it. Only the amount of wages was ruled adverse to the claimant and even this was upon an interpretation of a particular statute, as affected by legislative intent.

In the Lovett case, the only case cited above that has not already been discussed, the plaintiffs sued for their wages as employees of the U.S. Government for a period of time after November 15, 1943. The Court ruled that the statute did not destroy the obligation of the Government to pay for services rendered and therefore, did not prevent judgment in favor of the plaintiffs for the wages involved even for services after the November 15 dates. In the opinion of Justice Madden in this case, the following statement was made. I want you to listen carefully to this, this is a real important statement. It says:

It may well be that under our Constitution, and under any constitution which might be devised for a free people, one branch of the Government could, temporarily at least, subvert the Government. The Judges might refuse to enforce legal rights or convict criminals. The President might order the Army and Navy to surrender to the enemy. Congress might refuse to raise or appropriate money to pay the President or the Justices of the Supreme Court and the other courts. But any of these imagined actions would not be taken pursuant to the Constitution, but would be acts of subversion and revolution, the exercise of mere physical power, not lawful authority. And conduct by any branch of the Government less ruinously subversive, but, so far as it goes, equally unconstitutional, is likewise an exercise of physical power rather than lawful authority.

It is clear that the authorities relied upon by the Justice Department in advising the White House do not give any support at all to the action taken. In fact, they were very contrary to his position and very enthusiastic in their point of view as just read. The cases clearly deny rather than support the administration's position. The same memorandum which revealed the Department of Justice recitation of cases above referred to also observed :

The Department of Justice advises us that since the funds presently available for construction of the canal have been appropriated without fiscal year limitation, no further legislative action would be necessary to make such funds available for a resumption of construction. Whether a reauthorization would be necessary as a basis for future appropriations is a matter for Congress to decide.

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