The Constitution does not subject the lawmaking power of Congress to presidential control, except for the veto process. The fact that Presidents in the past may have overridden congressional appropriations does not deprive Congress of its constitutional authority.

The matter of congressional appropriations for defense purposes lies in the third category of congressional-presidential relationships set forth by Justice Jackson. "Exclusive presidential control" cannot be sustained and the President is not empowered to impose conditions upon the exercise of congressional authority in this field. See Kauper, The Steel Seizure Case: Congress, the President and the Supreme Court, 51 Mich. L. Rev. 141 (1952).

The weight of authority is against the existence of an inherent presidential power to impound appropriated funds-Goostree. The power of the President To Impound Appropriated Funds: With Special Reference to Grants-In-Aid to Segregated Activities, 11 Am. U.L. Rev. 32, 42 (1962).

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 executionReport 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)."

Congress has the final responsibility, subject to constitutional limitations and the President's veto power, for deciding which activities are to be undertaken by the Government and the amount of money to be spent on each. The President's role is to recommend to Congress a unified and comprehensive budget and to administer the budget as finally enacted-Committee on Organization of the Executive Branch of the Government Report on Budget and Accounting in the U.S. Government at 12-13 (1955).

A distinction must be made between the authorization and the actual appropriation of funds for a specified purpose. An act appropriating funds for defense purposes serves to implement a preceding authorization act passed by Congress.

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. "Congress in making appropriations has the power and authority not only to designate the purpose of the appropriation, but also the terms and conditions under which the executive department of the government may expend such appropriations. .

"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. (Spaulding v. Douglas Aircraft Co., 60 F. Supp. 985, 988 (S.D. Cal. 1945), aff'd, 154 F. 2d 419 (9th Cir. 1946).)"

The Supreme Court has also held that when Congress makes an appropriation in terms which constitute a direction to pay a sum of money to a particular person, the officers of the Treasury cannot refuse to make the paymentsee. for example, United States v. Louisville (169 U.S. 249 (1898); United States v. Price, 116 U.S. 43 (1885); compare 22 Ops. Att'y Gen. 295 (1902).)

The cases I have cited clearly demonstrate that the President cannot lawfully disregard a duly enacted law. It could be argued that Congress by statute has authorized the President to exercise discretion as to whether funds appropriated for a particular public works project should be expended or impounded. An examination of the statutory law gives no substance to that argument.

Impounding of appropriated funds to prevent deficiencies and to effect economies in governmental operations was authorized by the General Appropriations Act of 1951. This act provided, in part, as follows:

"In apportioning any appropriation, reserves may be established to provide for contingencies, or to effect savings whenever savings are made possible by or through changes in requirements, greater efficiency of operations, or other developments subsequent to the date on which such appropriation was made available. .."

Since this section appears to grant the Executive great latitude with respect to the impounding of appropriated funds, inquiry should be made as to legislative intent. The House Committee on Appropriations stated:

"The appropriation of a given amount for a particular activity constitutes only a ceiling upon the amount which should be expended for that activity. (H.R. Rep. No. 1797, 81st Cong., 2d Sess. 1, 9 (1950).)"

In the same report it is said that officials responsible for the administration of an activity for which an appropriation is made "bear the final burden for rendering all necessary service with the smallest amount possible within the ceiling figure fixed by the Congress." The purpose of the act is to "require careful apportionment of all types of funds expended by Federal agencies and efficient administration of the Government's business.".

The committee noted that in signing the National Military Appropriations Act for 1950, the President issued a statement indicating objections to the action of Congress in increasing funds for the Air Force, and directing the Secretary of Defense to place in reserve the amounts provided by Congress for increasing the Air Force structure. In this regard it was stated:

"It was not the purpose of the Congress in providing funds for the Air Force'.. in excess of budget estimates to establish or permit the President or the Secretary of Defense to establish reserves. . In the minds of the Committee, this action 'amounted to an item veto, a power not possessed by the President.'

"It is perfectly justifiable and proper for all possible economies to be effected and savings to be made, but there is no warrant or justification for the thwarting of a major policy of Congress by the impounding of funds. If this principle of thwarting the will of Congress by the impounding of funds should be accepted as correct, then Congress would be totally incapable of carrying out its constitutional mandate of providing for the defense of the Nation."

Certainly it was not the intent of Congress that the Executive should be enabled to impound funds appropriated by Congress for defense purposes. There appears to be no statutory authority for the impounding of appropriated funds, except for purposes of economy and efficiency in executing the purposes for which the appropriation is made.

The President cannot dispense with the execution of the laws, under the duty to see that they are executed. To hold otherwise would be to confer upon him a veto power over laws duly passed and enrolled. To accord discretion to a President as to what laws should be enforced and how much, would enable him to interpose a veto retroactively.

Some may say, what can one do to see that the President carries out the Constitution? There have been no suits on recent impounding of funds for defense objectives, such as for the advanced bomber, as far as I know. There may be many reasons for this; but perhaps the most conclusive one has been the lack of standing of one to sue to enforce the Constitution in a particular case. In the matter of the Cross Florida Barge Canal there may well be such ability to sue however; because not only has the State of Florida entered into expensive contractual arrangements with the Federal Government on this matter, but many local real estate owners have been taxed through the years to contribute the local funds that have been expended in Florida for this canal. I understand from the papers suits are going to be brought. 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, 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.

FELLUCA & CARSON, Baltimore, Md., February 12, 1971.

SENATOR SAM J. ERVIN,
Senate Office Building,
Washington, D.C.

DEAR SENATOR ERVIN: I am taking the liberty of sending you a photo copy of a Complaint for Injunction, Writ of Mandamus and Declaratory Judgment in the case of Burns, et al vs. Secretary of Transportation and Director of the Office of Management and Budget. The original of this pleading was filed this date in the United States District Court for the District of Maryland.

My reason for sending you this is because of your interest, through the Subcommittee on Separation of Powers of the Senate Judiciary Committee, in the very sort of problem raised by the Plaintiffs in the enclosed legal action.

It is my belief that the actions by the Defendants giving rise to the need to file this suit are flagrant examples of the abuse of executive powers to usurp the legislative powers of the Congress of the United States of America. In effect, the Defendants have ignored the Mandate of the Congress. Under the provisions of the laws cited in the suit papers, Congress has exercised its Constitutional powers. Because of the improper actions of the Defendants, the clearly expressed will of Congress is being frustrated. We contend that the Executive Branch has no Constitutional power to act in this matter and that its actions in withholding funds appropriated by Congress are an attempt to by-pass the will of the people and of the Congress by administrative fiat, contrary to the law.

Unfortunately, I must concede that my clients do not have clear assurance of success in their suit because of Constitutional law doctrines concerning separation of powers and the doctrine of "political questions". In any event, I feel that it is the Congress of the United States, as the most direct representative of the American People and as the Legislative Branch of our Government, that must act to prevent this usurpation of its powers by the Executive Branch of Government.

I would be most happy to furnish you and the Subcommittee any additional information that is available to me that you might require; and either myself or any of my clients would be willing to appear and testify before the Subcommittee upon your request. I have also taken the liberty of sending a copy of the enclosed pleading to Mr. Edmisten, as counsel for the Subcommittee, along with a copy of this letter for his information.

Very truly yours,

JAMES B. CARSON.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Civil Action, File No.

Complaint for Injunction, Writ of Mandamus and Declaratory. Judgment ROBERT S. BURNS, 2625 Adgate Road, Lima, Ohio 45805; PHILLIP DIAMOND, 1040 Flagtree Lane, Pikesville, Maryland 21208; DONALD W. JAKLITSCH, 115-39 "122nd" Street, South Ozone Park, New York 11420; WILLIAM K. JUDGE, SR., 6 Coronet Drive, N. Linthicum, Maryland 21090; DONALD I. PROPST, 4641 South Leisure Court, Ellicott City, Maryland 21043; THOMAS F. SULLIVAN, Mills Road East Setauket, Long Island, New York 11733; 'SEYMORE TREIB, 8950 South West ""20th" Street, Miami, Florida 33143: MARVIN WEINSTEIN, 8850 Garland Avenue, Surfside, Florida 33578; Individually and as a Class on behalf of all members of the United States Coast Guard Reserve, similarly situated, PLAINTIFFS

V8.

JOHN A. VOLPE, as Secretary of Transportation of the United States Department of Transportation, 400 "7th" Street, S.W., Washington, D.C. 20591; and GEORGE T. SHULTZ, as Director of the Office of Management and Budget, Executive Office Building, Pennsylvania Avenue, Washington, D.C. 20503, DEFENDANTS

The Plaintiffs, for their complaint, allege:

1. That this action is of a civil nature, brought to require Defendants to do the duties prescribed for them by the Acts of Congress, acting in their capacities as officers of the Government of the United States, and to declare certain

acts of Defendants herein described to be contrary to the Acts of Congress and contrary to the Constitution of the United States, and also to enjoin commission of these acts by Defendants. Jurisdiction is conferred on this Court by 28 USC 1361, 28 USC 1391 (c) (4), and the existence of a Federal question. No real property is involved in this action, and three of the Plaintiffs reside within this District. This action also arises under the Constitution of the United States, Article I, Section 8, and under Chapter 11, Title 10, United States Code, as amended by Public Law 90-168, 81 STAT 521, December 1, 1967, cited as the "Reserve Forces Bill of Rights and Vitalization Act", and also under the following joint resolutions of Congress: Joint resolution approved June 29, 1970 (PL 91-294), amending joint resolutions approved August 1, 1970 (PL 91-370), October 15, 1970 (PL 91-454) and January 2, 1971 (PL 91-654).

2. Plaintiffs are citizens of the United States and are all members of the Selected or Ready Reserve of the United States Coast Guard. Plaintiffs Diamond, Jaklitsch, Judge and Propst are officers, warrant officers or enlisted personnel participating in the Selected Reserve in a paid drill status. Plaintiffs Burns, Sullivan, Treib and Weinstein are members of the Ready Reserve. All Plaintiffs are patriotic citizens of the United States concerned about the security of this country. This action is brought by them in their individual capacities and also as representative parties on behalf of other members of the Coast Guard Reserve under the provisions of Rule 23, Federal Rules of Civil Procedure. Plaintiffs allege:

(a) The class is so numerous that joinder of all members is impractical; (b) There are questions of law or fact common to the class;

(c) The claims of the representative parties are typical of the claims of the class;

(d) The representative parties will fairly and adequately protect the interest of the class; and,

(e) The prosecution of separate actions by individual members of the class would create a risk of adjudications with respect to individual members of the class which would, as a practical matter, be dispositive of the interest of the other members not parties to the adjudications and substantially impair or impede their ability to protect their interest.

3. Defendant, John A. Volpe, is Secretary of the Department of Transportation of the United States, and as such is a Cabinet member and officer of the Executive Branch of the United States Government and is the "Secretary concerned" according to and under the provisions of Public Law 90-168. Defendant, George T. Shultz, is Director of the Office of Management and Budget within the Executive Office of the President of the United States and as such controls the apportionment and expenditure of funds appropriated by Congress.

4. Under the provisions of 10 USC 268, as amended by Public Law 90-168, the aforementioned "Reserve Bill of Rights and Vitalization Act", Congress provided:

"(b) Within the Ready Reserve of each of the Reserve Components defined in Section 261 of this Title, there is a Selected Reserve consisting of units, and, as designated by the Secretary concerned, of Reserve, trained as prescribed in Section 270 (a)(1) of this title, or Section 502(a) of Title 32, United States Code, as appropriate.

'(c) The organization and unit structure of the Selected Reserve shall be approved

(1) in the case of the Coast Guard Reserve, by the Secretary of Transportation upon the recommendation of the Commandant of the Coast Guard, . . .” (10 USC 261(b) and (c))

and in the next to the last paragraph in the 1967 Amendment:

"(c) Beginning with the fiscal year which begins July 1, 1968, and for each fiscal year thereafter, the Congress shall authorize the personnel strength of the Selected Reserve of each Reserve component of the Armed Forces; . . ." (81 STAT 526, Section 6(c))

5. In February, 1970, the strength of the Selected Reserve was in excess of 15,000 men. Because of this and pursuant to the expressed intention of the Secretary to "phase out" the Coast Guard Selected Reserve, the Commandant of the Coast Guard, acting under the control of Defendant, Secretary of Transportation, ordered that all recruiting for the Coast Guard Reserve immediately cease. In a lawsuit involving the same Plaintiffs in this action and the Secretary of Transporation and Admiral Willard J. Smith, then Commandant of the Coast Guard, Admiral Smith filed an Affidavit in which he said, inter allia :

"On February 2, 1970, I sent a message to all Coast Guard Districts which stated our policy for the Selected Reserve. It also gave other information concerning a proposed phase-out of the Selected Reserve which was contained in the President's budget message of the same day. As later clarified in my message of February 7 to all Coast Guard Districts, my February 2 message was intended to be informational only.

"At the present time, we anticipate that there will be no input into the Selected Reserve because of the mandate of Congress that we reduce its strength by two thousand members by the end of fiscal year 1970. No action has been taken or is intended to be taken on the President's proposal to Congress for further phase-out of the Selected Reserve other than for planning purposes. Only in the event that Congress passes the proposed legislation do we anticipate any change in the present Selected Reserve."

A photo copy of this Affidavit, which was filed in the United States District Court for the District of Columbia, Civil Action, File No. 559-70, is attached hereto as Plaintiff's Exhibit "A".

6. Pursuant to the provisions of Public Law 90-168, Congress acted. It rejected the proposal of the Secretary to "phase out" the Selected Reserve of the Coast Guard, and instead, the authorized personnel strength of the Selected Reserve of the Coast Guard was set by law at 15,000 for the fiscal year beginning July 1, 1970. Public Law 91-441 (84 STAT 908) passed October 7, 1970 provides, under Title III, Reserve Forces, Section 301:

"For the fiscal year beginning July 1, 1970 and ending June 30, 1971, the Selected Reserve of each Reserve component of the Armed Forces will be programmed to attain an average strength of not less than (emphasis added) the following: .

(7) The Coast Guard Reserve, 15,000."

7. Congress provided the funding necessary to recruit and maintain a 15,000 man Selected Coast Guard Reserve force by the joint continuing resolutions cited in paragraph 1 above. Thus, the factual situation existing now is that Congress has refused to accept any proposal to "phase out" the Selected Reserve of the Coast Guard, and instead has mandated its strength at 15,000 men. When the mandated strength was reached on or about July 1, 1970, recruiting should have been immediately resumed pursuant to Admiral Smith's Affidavit and the Acts of Congress. Upon information and belief, Plaintiffs allege that the Coast Guard has requested permission to resume recruiting in order to comply with the law. Plaintiffs allege that recruiting has not been resumed to this date because of the actions of Defendant, Secretary of Transportation, and Defendant, Director of the Office of Management and Budget, in refusing to allow the Coast Guard to recommence Reserve recruiting. As a result of this illegal action by defendants, the strength of the Selected Reserve, as of December 31, 1970 was 13,920 men. The strength will continue to drop at the rate of about 180 or more per month so long as there is no recruiting.

8. Upon information and belief, Plaintiffs aver that the present Commandant of the Coast Guard, Admiral Chester R. Bender, pursuant to the provisions of Public Law 90-168, has recommended to the Secretary of Transportation that the Selected, Reserve of the Coast Guard consists of units and reserves to provide a Selected Reserve force of 15,000 men as mandated by Congress.

9. Plaintiffs further allege that the provisions of Title 14, USC, and Public Law 89-670, impose legally enforceable responsibilities and duties concerning national defense capabilities and the military readiness of the United States Coast Guard as one of the five Armed Forces of the United States upon Defendant, Volpe. Mr. Volpe is neglecting his duties in that he has refused to allow the Coast Guard to recruit reservists and take other necessary steps to maintain the Reserve needed by the Coast Guard as one of the Armed Forces of the United States to meet its national defense and military readiness responsibilities. All of this is in violation of the law and in dereliction of the Secretary's duties as prescribed by law.

10. Plaintiffs further allege that Defendant, George T. Shultz, in his capacity as Director of the Office of Management and Budget, and in cooperation with Defendant, John A. Volne, in his capacity as Secretary of Transportation, has refused to apportion and release the funds provided by Congress for the Coast Guard Selected Reserve to the Coast Guard and Defendants have ordered and instructed the Commandant of the Coast Guard not to resume recruiting for the Coast Guard Reserve and this refusal to apportion and release funds necessary for the Coast Guard to recruit for the Reserve and order not to resume