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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.

Of course, Congress had already decided; they already authorized by law and the President has tried by himself to repeal that law.

In making the above statement, the Justice Department has in fact conceded that the President cannot repeal a law, and since the laws that authorized and appropriated for the canal still exist they must admit, if they are to be logical, that the Constitution requires these laws to be carried out by the President until they are legally repealed.

There are only a few cases I will mention in closing. They were not discussed by the Justice Department, for good reason to them. In Kendall v. United States ex rel. Stokes (37 U.S. (12 Pet.) 524 (1838)), Postmaster Kendall had disallowed claims of Stokes for carrying the mail. Congress passed an act directing Kendall to credit Stokes with the amount due. Kendall again refused to pay the claim, contending that only the President, under the power to see that the laws are executed, could require that he pay the claims. The Supreme Court upheld a mandamus ordering the payment, holding that the President was not impowered to dispense with the operation of law upon a subordinate executive officer:

When Congress imposes upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the Constitution . . . in such cases, the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President...

To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the Constitution, and entirely inadmissible.

This is a Supreme Court decision.

To avert a nationwide strike, President Truman issued an executive order directing the Secretary of Commerce to seize and operate most of the steel mills. According to the Government's argument in Youngstown Sheet & Tube Co. v. Sawyer (343 U.S. 579 (1952)), the directive was not founded on any specific statutory authority, but upon "the aggregate of the President's constitutional powers as the Nation's Chief Executive and the Commander in Chief of the Armed Forces." This really gets to the real heart of the things we have been discussing this morning.

The Supreme Court rejected the broad claim of power asserted by the Chief Executive, holding that—

The order could not properly be sustained as an exercise of the President's military power as Commander in Chief . . nor ... because of the several constitutional provisions that grant executive power to the President. Mr. Justice Black, who delivered the opinion of the Court, noted:

In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that All legislative powers herein granted shall be vested in a Congress of the United States . . After granting many powers to the Con

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gress, article I goes on to provide that Congress may "make all laws which shall be necessary and proper for carrying into execution 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."

The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress; it directs that a presidential policy be executed in a manner prescribed by the President. . . . The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. . The Constitution does not subject this lawmaking power of Congress to presidential or military supervision or control.

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It is said that other presidents without congressional authority have taken possession of private business enterprises in order to settle labor disputes. But even if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution "in the Government of the United States, or any Department or Officer thereof."

Mr. Justice Douglas, in a concurring opinion, noted:

The power to recommend legislation, granted to the Preisdent, serves only to emphasize that it is his function to recommend and that it is the function of the Congress to legislate. Article II, section 3, also provides that the President "shall take care that the laws be faithfully executed." But... the power to execute the laws starts and ends with the laws Congress has enacted.

The most interesting part of this decision was by Mr. Justice Jackson, with a listing of the various powers and the situations in which a President may doubt, or others may challenge, his powers and indicated the legal consequences of the factor of relativity to the powers of Congress:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power

2. When the President acts in absence of either a congressional grant or denial of authority, he can only reply upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

This very thing that President Nixon spoke about when he was being admitted to the New York bar, which I have already quoted, applies clearly in the case of the canal.

In the canal matter, the President has taken a step such as Justice Jackson describes in the third situation above, that is one incompatible with the intention of Congress in duly enacted laws. Therefore, "he can only rely upon his own constitutional powers, minus any constitutional powers of Congress."

The weight of authority is against the existence of an inherent presidential power to impound appropriated funds-I cite Goos

tree.

The general theory underlying the Constitution is that Congress shall be responsible for the determination and approval of the fiscal policies of the Nation and that the executive shall be responsible for their faithful execution-report of the President's Committee on Administrative Management at 15 (1937).

This division of authority was stated by President Wilson in a message to Congress on May 13, 1920:

The Congress and the Executive should function within their respective spheres. The Congress has the power and the right to grant or deny an appropriation, or to enact or refuse to enact a law; but once an appropriation is made or a law passed, the appropriation should be administered or the law executed by the executive branch of the Government. (Report of Pres. Comm. on Admin. Mgt. at 15.)

Although an authorization may be considered as only constituting permission to expend funds for a particular purpose, an appropriation of funds implies a directive that such funds be expended to effect the purpose indicated.

I now quote here from Spaulding v. Douglas Aircraft:

The purpose of the appropriations, the terms and conditions under which said appropriations were made, is a matter solely in the hands of Congress and it is the plain and explicit duty of the executive branch of the Government to comply with the same. Any attempt by the judicial branch of our Government to interfere with the exclusive powers of Congress would be a plain invasion of the powers of said body conferred upon it by the Constitution of the United States.

It is sincerely to be hoped that the President will reconsider this matter and at least let the proponents of the canal be heard on the issues for and against, which has not yet been allowed. Particularly, since the evidence is strong that the reasons for the President's action seem to have overlooked the fact that the Oklawaha can be inexpensively bypassed and that no wildlife preservation is in fact achievable by terminating the canal, these being the grounds relied upon the President's press release.

It would be very appropriate and helpful if the committee could look into the constitutionality of the President's action on the canal matter and express an opinion thereon.

Now, this matter is being litigated. I have no doubt about the result of the litigation. It is not a simple question of impounding funds; it is a simple question of repudiating the Constitution. There is no court in the land that is going to uphold the President in this action. It is going to uphold the Constitution without any preadventure of doubt. But in the meantime, millions of dollars will be wasted, the ecology will be unnecessarily hurt by indecisive actions on the subject, and the advantages of the canal will be lost.

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