Plant and capital equipment-Continued 61-d-5-Fast reactor core test installa- 57-xxx-Nuclear-powered merchant ship Reserve for project overruns - - . 71-5-a-Addition to physics building (human radiobilogy facility), Argonne National Laboratory, Illinois.. 71-6-a-National Nuclear Science Information Center (AE only), Oak Ridge, Tenn.. 67-8-Construction planning and design.. 66-10-Construction planning and design. 65-10-Construction planning and design.... Totals (as of Mar. 10, 1971) ----- .. I Amount reserved at the time of initial apportionment. FEBRUARY 18, 1971. MR. CLARK MACGREGOR, Counsel to the President for Legislative and Congressional Affairs, The White House, Washington, D.0. DEAR CLARK: Thank you, for your February 8 letter. I have talked with you briefly about this since then, but I told you I would write to you and so I am doing so now. It is my understanding from your letter and also from previous conversations with members of the Council that the summary which you are presenting in the letter of February 8 was actually compiled after the President had announced his decision, and is not the paper which was presented to the President. I would still like to have a copy of the thing that was presented to the President and upon which he based his decision. I think that you can see that this would very much lighten my burden in bringing the issues out concretely and specifically, when you consider the tremendous bulk of material that was summarized in the attachment to your letter, much of which is categorically denied by outstanding ecologists and geologists who have an opposite point of view. I would like to be able to present to the President opposing points of view on many of the things which are involved and not taken issue with in the material which you sent. With regard to the second point of your letter on legal aspects of the President's action, I enclose herein an extension of my remarks which I have put in the CONGRESSIONAL RECORD recently. I would appreciate very much receiving any legal opinion that you may have accumulated to the contrary. With regard to the fact that you would like to see me and others to discuss recommendations you mention, you can count on it that I would be glad to attend any meeting that has a relevance to the Canal, but I understand from your letter that this does not have anything to do with whether or not the Canal will be continued but only as to what is planned by people in the Administration for the area of the Canal. It is not quite clear to me how people in the Administration can make decisions of that nature since we are involved with a law which was duly enacted and since undoubtedly lawsuits are going to be prevalent and extensive in this field. I enclose herein a clipping from a newspaper with regard to recent action taken by the Florida Canal Authority, and I understand that litigation is also about to commence from the Chamber of Commerce and other interested organizations in Florida. I also enclose herein a copy of a resolution which just came to me from the Junior Chamber of Commerce in opposition to the President's position. I appreciate your kindness and willingness in keeping me informed of events as they now transpire. I still would like to see the President with regard to the basic decision about continuation of the Canal in an alternate route, and I make this request again by this letter. With kindest regards, I am Sincerely, CHARLES E. BENNETT. THE WHITE HOUSE, Washington, February 25, 1971. Hon. CHARLES BENNETT, House of Representatives, DEAR CHARLIE: With regard to the second paragraph of your letter* to me the Department of Justice advises me that in its view the President has ample legal authority for his action in terminating further construction on the canal. 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 project 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). While Congress appropriated funds for further construction of the canal with knowledge that objections to the project had been raised on environmental grounds, neither the language of the Public Works, etc. Appropriation Act nor that of the legislation authorizing the canal can properly be interpreted as a direction to the Executive Branch to continue construction of the canal or as precluding the President from exercising his power and responsibility to act in accordance with his conclusion that continued construction is not in the public interest. I will respond shortly to the other matters which you raised in your letter. A CLARK MACGREGOR, Counsel to the President (For Congressional Relations). [From Extensions of Remarks, the Congressional Record, Hon. Charles E. Bennett, House of Representatives, Feb. 11, 1971) / 1 RECENT ACTION TO HALT FLORIDA CANAL UNCONSTITUTIONAL Mr. BENNETT. Mr. Speaker, on January 19 the President issued a statement in which he said: "I am today ordering a halt to further construction of the Cross Florida Barge Canal." This canal is somewhere between a third and a half complete. Fifty million dollars has been spent on it. It was being built because it is authorized by law and appropriated for by law. 1 The reasons ascribed by the President in the Statement were that the Council on Environmental Quality recommended the halt and had pointed out to him "that the project could endanger the unique wildlife of the area and destroy this region of unusual and unique natural beauty," referring to the beautiful Oklawaha River valley. Since ending the canal would allow the land to go back to private ownership; and since this narrow strip of land could hardly protect much wildlife any way when one considers that only a short distance away are 439,000 acres of national forest where the wildlife could really be protected, it is apparent that the President was misled as to the wildlife protection which could result from closing the canal. Since the alternate route suggested by the Corps of Engineers would bypass the Oklawaha, this other point raised by the Council and relied upon the President is also not a valid reason for abandoning the canal. *Of Feb. 18th. But this matter of the reasons for the action of the President is not what I would like to discuss at length today. I already discussed those reasons more at length on February 8, as has appeared in the CONGRESSIONAL RECORD at page E531. No, what I would like to discuss today is the fact that if the President means to terminate the canal permanently, not just halt to restudy, then this action is unconstitutional. There is in fact no authority I know of to the contrary: 1) The Constitution does not say that the President shall execute the laws, but that "he shall take care that the laws be faithfully executed." (Art. 2, sec. 3.) "To contend, that the obligation imposed upon the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissable. Kendall v. United States, 37 U.S. 524, 611 (1838)." The authority given to the President to stop appropriations or a Federal project under the Constitution is in his right to veto. (Art. I, sec. 7.) But after a bill is signed, and appropriations are made, an executive officer cannot interfere with that law. In the following comments I am making I have relied heavily upon the excellent brief of Gerald W. Davis, as published in the October 1964, edition of the Fordham Law Review. Under our system of government it is the legislative branch which is to make and decide policy. The executive branch "is supposed to carry out the policies declared by Congress." (31 Cong. Dig., No. 1, p. 1, at 2 (1952).) (See MacLean, "President and Congress: The Conflict of Powers," 61 (1955).) There is no provision of the Constitution which specifically requires the executive branch to spend money appropriated by Congress. The President is required, however, to "take care that the laws be faithfully executed." (U.S. Const, art. II, sec. 3.) Whether this constitutional provision vested in him discretion as to the execution of acts of Congress was argued 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 inadmissable." To avert a nationwide strike of steelworkers in April 1952, which he believed would jeopardize national defense, 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." The Secretary of Commerce issued an order seizing the steel mills and the President promptly reported these events to Congress, but Congress took no action. It had provided other methods of dealing with such situations and had refused to authorize governmental seizures of property to settle labor disputes. The steel companies sued the Secretary and 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 recom mending 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 Congress, 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. 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 President, 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 three dissenting Justices did not assert that the President could act contrary to a statute enacted by Congress. They argued that there was no statute which prohibited the seizure and that there was "no evidence whatever of any Presidential purpose to defy Congress or act in any way inconsistent with the legislative will." Mr. Justice Jackson, concurring with the majority opinion, remarked on the "poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves." He suggested that "Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those. of Congress." Justice Jackson then listed 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." The latter situation (3), as discussed by Mr. Justice Jackson, more nearly relates to the situation involved in the current action on the Cross Florida Barge Canal. |