I think perhaps I have brought to you a cause celebre, because in the studies I have made of this subject, I have never found a case where the President has actually sought to end a project duly brought about and apprepriated by the Congress. But the cases I have read all held against the President taking action upon himself to repeal the law in every single case, without any difference of opinion at all.

Mind you, in Attorney General Ramsey Clark's opinion, he made a big conclusion not supported by his cited cases. He might have been right in his overall thrust of his memorandum, because it had nothing to do with ending a project, only to do with appropirated funds being used sparingly to accomplish, not kill, the project.

I recur to what I said when I started: That this subcommittee might well look into the impoundment of funds or appropriations where statutes have been passed, to allow the President to have additional powers there, and they ought to be looked at to see whether they are being stretched out of kilter. But the canal project is one where a project is attempted to be killed, not just reduced.

Senator ERVIN. If you will pardon the interruption, I understand Secretary Udall and Mr. Alioto have to go.

I am sorry, Mayor

Mayor ALIOTO. Not at all. I do have to go but I am happy to have been invited, and I want to thank the Senator for doing it. I want to thank the Congressman for researching the law for us. We may use it on our appropriation.

Senator ERVIN. I am sorry you have to go, but I want to thank you for the assistance you have given the subcommittee.

Mayor ALIOTO. It is always a pleasure to be here.

Mr. UDALL. I have a little quarrel with my old friend, Congressman Bennett, and I had better express it here.

Mr. BENNETT. I welcome it.

Mr. UDALL. I have not gone into the thing as deeply as he has legally. I am sure he knows that as an environmentalist, I applauded the President's decision on the Cross-Florida barge canal. But my feeling was when the President acted, because he did act abruptly, that you and your people had every reason to be agrieved that there was not some kind of hearing, some kind of determination. And I assume, because I am very familiar with the National Environment Policy Act, and they have the authority to hold hearings in cases like this, but I had assumed the President acted legally or that his legal theory, Congressman, was that although Congress had authorized this project and appropriated money and it was one-third completed or whatever it was, that then Congress came along later and passed a National Environment Policy Act that imposed obligations upon him to evaluate the environmental consequences. Having evaluated it, he determined that the project did not comply with that act and, therefore, the impoundment was merely an incident to the larger decision. Mr. BENNETT. May I comment on that?

Mr. UDALL. Yes.

Mr. BENNETT. This might give the President some happiness if he did not read the law. But the law, which I was a coauthor of and really had a lot to do with drafting, has no such provision. The law provides for hearings, allows hearings, which the environmental quality people, as a matter of fact, did not hold. They made no separate study. As a matter of fact, they made absolutely no study of the environment of the canal whatsover. They took only things that had been published by railroad-backed groups and things like that-mostly people who were opposed to the canal from the beginning for their own personal and economic reasons. They had some other things there, I am sure, from some very sincere people. But they only accumulated material of writings already done, not necessarily scientifically. They did not themselves make any study before the President's decision.

When I appeared before them they also admitted to me that they were not going to allow me to read the decision, if any, that they had rendered.

Now, there has been something published by Congressman Young which may be their decision. But they told me at the time I asked for it that they would not give me their decision-contrary to the statute. The statute says that any of their findings shall be made public. They not only did not hold a hearing, they did not notify the public they were going to make a decision. They did not notify the Congress that they were going to make the decision. They notified nobody. They apparently did not make an independent study and did not make their decision, if any, available to the public, as the law which I introduced and was passed required them to do. So the Council on Environmental Quality repudiated the law under which they got their power. But aside from this indifference to democracy there is nothing in that law which says the President can repeal existing laws or stop projects authorized by law. There is nothing by implication to allow him that and there is implication in the law that he cannot do it.

This statistic does not give the President any such power and does not give the environmental quality people any power to end a project. If it does, it ought to be repealed, but that is not in the law. Laws should be repealed, not administratively canceled.

I am not now talking about the ecology of the canal but I am talking about ending a legally authorized project-a matter of constitutional law.

Now, when in America, Mr. Secretary, have we come to a point where we are not even willing to notify Members of Congress, not willing to repeal laws after duly held hearings where people can be under oath and opposing points of view can be heard? How far have we come down the line to the Napolionic or Louis the 14th or Catherine de Medici approach to government?

I want to finish this and tell you about the way in which I have been treated.

Even before the President was elected, I asked to come see him about the canal because I knew there was controversy arising, asking him to see me. I was refused this opportunity. In my opinion, judging from my own experience, there has never been a more isolated

President of the United States than President Nixon. Statements have been made about how many people he sees and he said once he is not a lonely man; he is overwhelmed with people who want to come in his door. That is so. But you can note the people who go in his door. You can read this in the paper. They are not often Members of Congress talking about things in the Government. A lot of his own Cabinet have difficulty seeing him. I have repeatedly requested the President to let me see him. I have written letter after letter saying, "Please, let me talk to you about this." He will not let me see him about it or those who protect him will not let me see him. He will not hold any hearings about it. But, of course, the hearings ought to be held in Congress. This is the law. Congress is a necessary part in the repeal of law.

So the law and the Constitution are 100 percent against the President; and his isolation is unparalleled in American history. I am a student of history, have written a few books myself, and am not a novice in this field. Of all the Presidents I have studied. President Nixon is the most isolated of all. He does not hear people, evidently, who have things to bring to him on matters of this type but, of course, it may be the fault of those who surround him, rather than of himself.

The reason for the strong statement I have made today is I hope he will give me an ear. This is a stronger statement than any I have made. Litigation is not the best answer. This is not going to solve this for people who want to be heard on the merits of the proposal.

Mr. UDALL. This is a marvelous example of what I was talking about earlier-political pressure.

Senator ERVIN. I was just going to say that we have a story about a justice of the peace down in North Carolina. He was trying a little civil case one day and when the plaintiff finished his presentation of his evidence and rested his case, the justice of the peace said to the lawyer for the defendant:

I would appreciate it very much if you wouldn't offer any evidence. When I have just one-sided propositions, I do not have any trouble in reaching conclusions, but when I hear both sides, I am rather confused.

Mr. ABRAMSON. Mr. Chairman, if I may ask a question. Perhaps as minority counsel to the subcommittee I can provide some balance. We have been talking about what the President can't do. I would like to address the panel as to what he can do in an effort of providing an efficient, orderly government, and one based upon sound economy. To what extent, for instance, must he work within the debt ceiling? What of his obligation to fight inflation? In other words, I think it would be productive to the subcommittee's inquiry to discuss executive responsibilities as well as executive impoundments.

Mr. BENNETT. There are two big things he can do. One, he could leave the canal out of the budget. Two, he can ask for repeal of the laws that establish it. Those are two very definite things he can do. He might, by such action, kill the canal. But he does not have the authority under our Constitution to repeal laws.

Professor BICKEL. Could I ask the Congressman as genuinely a question asked from a desire to know. The Anti-deficiency Act as amended in its subsection (c) (2), I guess, is, as I read it, the princi

pal provision in existing law that authorizes the withholding of funds, placing them in reserve, or anything of that sort. It says that to provide for contingencies or to effect savings whenever savings are made possible by or through changes in requirements, greater efficiency of operations or—and this is the language that I am interested in or other developments subsequent to the date on which such appropriation was made available.

Now, looking at the language on its face, it seems to say that there may be come occasions when, after Congress has acted, the President finds that things have changed and that he can make a saving by not spending a given sum of money. I do not see anything in there that would prevent him from not spending a whole given sum of money or only portions of it on the basis of changed conditions. Now, if I were the President's lawyer, this is where I would rest my chief argument.

Mr. BENNETT. Well, he did not for the simple reason that he would not be on sound ground if he did it, because it has been construed by the Supreme Court and many minor courts that he does not have such power under that act. In my brief, I have cited an excellent article by Gerald Davis in the 1964 Fordham Law Review. I recommend that you read it.

Professor BICKEL. I have read it.

Mr. BENNETT. I have not practiced law in 23 years, but when the White House threw this thing to me, it really made me almost regurgitate, because it is so contrary to constitutional law that it is sickening.

I did recommend that this committee look into these spending statutes. This is one of the statutes. There are other statutes. There are some statutes with regard to defense spending, too. There are perhaps three or four such statutes.

Professor BICKEL. It may be that this statute ought to be amended and it may be that it need not be read as if I were the President's counsel, I would try to read it. But there is no court opinion that construed it definitely one way or the other.

Mr. BENNETT. I beg your pardon. I think there is, and that you will find it in the Fordham Law Review. They do construe this and they do specifically say there are such cases as I remember the article. If I had the Fordham Law Review, I could perhaps find you the cases. I did not bring it here because we are involved here in the termination of a project. There is no case in all judicial decisions which rules in favor of the President on that.

Professor BICKEL. I agree.

Mr. BENNETT. There are some which rule in his favor with regard to withholding funds for economic reasons, reduction of payments, and so forth, but not to end a project. In other words, you would not want the President to spend $2 million to do something he could do for a million dollars and the statute allows him to cut it down for a million dollars. But the project must go forward.

I read you a Supreme Court decision. Let's read again what they said in the Supreme Court decision. It said:

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

That same kind of reasoning has been applied since the enactment of the statute you referred to, saying that it does not allow you to end a project duly authorized and appropriated for by law. You can minimize the spending to save money, but Congress does not give the President the right to repeal, for instance, the Arkansas project or any other kind of project-anything authorized by law specifically.

Professor BICKEL. Suppose Congress authorized the building of a bridge in a statute enacted in 1942 and the war occurs and various things happen and the thing goes slowly and then there is an initial appropriation and whatnot, and by the time it gets to the last stages of it, the river is dried up or some other physical change has taken place which would render it nonsense to build that bridge in that spot. I would read this language, and I do not believe there is a court opinion that tells me not to, as saying that the President under those changed conditions is authorized not to build it.

Mr. BENNETT. You started off asking advice and you are now giving it. You asked my opinion of the law and now you are giving me your opinion of the law.

Professor BICKEL. I was just giving you an opinion on an analogy,

not a case.

Mr. BENNETT. Yes, but you asked for a legal opinion as best I could give it and now you are telling me your opinion.

Professor BICKEL. I am trying to let us reason together.

Mr. BENNETT. Well, all right, let us reason together on the project you referred to. You said suppose the water dried up and there was no use to build the bridge. I suppose under these circumstances the President might have a point under that statute. We are not involved with that on the canal, however. We are involved in a situation where Congress only last year looked at the very same ecological studies that the President was supposed to have had presented to him and decided that in balance, the canal ought to be built. Congress, in other words, reenacted the law on this project less than a year ago, often discussing and rejecting the President's present position. That is an entirely different situation from what you are referring to.

The President is not powerless, as has been pointed out, not at all. The thrust of the President in this hysterical ecological period which we are now going through against the canal is powerful politically, particularly if he relied on something sound in his statement. He did not rely on anything sound, but he could have found maybe something that had some controversy about it. The two things he said in his statement were not sound at all. He talked about wildlife. This is a narrow little strip of land not adiacent to any great wildlife preserve, but a mile or so awav are 500.000 acres of wildlife preserve. So if you turn back the Oklawaha River basin to the private property owners who own 50 and 100 foot lots on it, there will be no wildlife preservation at all. it is not going to save a single coon or a single possum. There are 500.000 acres about a mile away in the Ocala National Forest. So it has absolutely nothing to do with saving wildlife.