Page images

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 mule 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

The President is referring to." is an entire

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 preserye, but a mile or so awav are 500.000 acros 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.

As far as the beauty of the Oklawaha is concerned, it can be bypassed by the canal. Those are the two things he based his opinion entirely upon.

I didn't want to get into too much of the merits, but there is no soundness in the President's position ecologically at all. What he made his decision on is not even controversial. There is nobody that believes his press release has any foundation in fact. There are some ecological things which are controversial. They say there is some kind of clam that lives in the Gulf of Mexico that might get into the Atlantic, but it is strange to me it would take that course and not go down around Cuba.

And of course, anybody who opens his mouth, like me, is guilty of some ecological disturbance.

Professor MILLER. May I suggest, Senator, that it might be helpful if we could get these cases Mr. Bennett is relying on and put them in the record, if we could.

Mr. BENNETT. They are in the Fordham Law Review, if my memory serves me correctly.

Professor MILLER. I am inclined to agree with my colleague, Professor Bickel. I do not think the cases really are there. I would like to see them.

Professor BICKEL. I think they surround the problem, but are not squarely on it. I agree with you, there is surrounding atmosphere in the cases.

Mr. UDALL. Mr. Chairman, I would like to say this has been a new experience for me today. I think your subcommittee is doing a little pioneering with this kind of panel where we sit as equals with you gentlemen and I find it very refreshing.

Senator ERVIN. We have found it very helpful to discuss matters in this fashion.

Mr. BENNETT. I did not really brief simple impounding, because this is not an impounding case, but there is no doubt constitutionally the President is on unsound ground if he ends a project or program provided for by authorization and appropriation.

Professor MILLER. Mr. Bennett, just as a matter of record, there is no Supreme Court case on the record. The Hukill case is a Court of Claims case.

Mr. BENNETT. What do you mean there is no Supreme Court case on this?

Professor MILLER. On the matter of impoundment. Mr. BENNETT, I see. That is not what I briefed. The Hukill case is not one I cited for myself.

Professor MILLER. Yes, sir, you did on page 4 or 5. Mr. BENNETT. I beg your pardon. The Aukill case is discussed defensively in my brief. It is a case that was quoted by the White House as sustaining its position. And of course, it does not.

The cases I cited aggressively were the Truman case and the Justice Jackson in Kendall v. the United States, which is the earliest case. Then the other ones about the Truman problem were the ones I cited aggressively.

Professor BICKEL. I think we are all agreed that that opinion by acting Attorney General Clark, I think none of the cases would support that.

Mr. BENNETT. Even the Library of Congress, which is our tool, had the courage to say so. They said it does not sustain the point of view taken. There is not even any obiter dicta. There is not any dicta in those cases that states that position.

As a matter of fact, if you are going to talk about dicta, this would be dicta even in the Ramsey Clark decision if it was a court decision.

Professor BICKEL. I am not arguing with you, but there is also no law the other way.

Mr. BENNETT. What do you mean the other way.

Professor BICKEL. There is no law that tells us what the authoritative construction would be of the Anti-deficiency Act. There is no law that tells us what the difference is authoritatively between a mandatory and a permissive appropriation on the part of Congress. Those things are what this subcommittee is about, trying to think through it and straighten it out. But I do not think it can be said that they are now decided by existing legal decision. That is all we were arguing. We would agree with you that to the extent that past administrations have claimed the law is there for them, they are quite wrong also, wrong in chief.

Professor MILLER. Let me pose two questions, Mr. Bennett, if I may. First, have you tried, as Mr. Udall said before you came in, the House committees, the appropriations committees and so on, have you tried any legislative remedies in other words, to get a decision on this?

Ir. BENNETT. It is just coming up. I am going to be testifying in less than a month for additional funds for the Cross-Florida barge canal.

Professor MILLER. Are you going to ask for mandatory language, or what are you going to try for? Mr. BENNETT. The case does not require mandatory language. Professor MILLER. Why do you not require it? Mr. BENNETT. Well, I may. Thanks for the suggestion. I appreciate it.

Mr. UDALL. Congressman Vinson tried it a few years ago.

Mr. BENNETT. I must say to you, sir, I quoted in my brief á case which specifically said--I do not know if I can find it again or not, which said that when authorization is made and then appropriations are made like this, it becomes mandatory law. Decisions have been rendered by the courts, and I think by the Supreme Court, and none to the contrary, that when you make an authorizationwell, you can shake your head all you want to, but that is the law. Let's put the burden the other way. Give me a case which puts the burden the other way.

Professor BICKEL. In a case like the Kendall case, in which the statute says the only thing left in the executive clearly is the ministerial act of paying out. I think it is quite clear-and the administration agrees with that. I think, in the Attorney General's opinion--that you can even have the process of the courts available to require that money be paid out. What Professor Miller was asking is whether Congress would intend for this appropriation for this canal in Florida to be made mandatory in that fashion. I do not

« PreviousContinue »