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 Hukill 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. trving 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?

Mr. 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 a 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 paving 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

think any of us have any doubt of the constitutional position when an appropriation is made mandatory. There is nothing left but to pay it out.

Mr. BENNETT. Before I started reading the law as distinguished from searching my own brain, I had the same opinion you had, because there were a lot of general statements like this made, including the one by the Attorney General, but I could not find such law. Maybe you can find some cases. I could find no case which sustained the point of view that it was required of Congress to state mandatory language.

Professor BICKEL. I did not say that, Mr. Bennett. I said that when Congress does it is the one thing that is clear in the law, about the only thing that is really quite clear-that when Congress does make an appropriation mandatory in the sense that all that is left is a ministerial act of paying it out, then the constitutional position is as clear as it can be, namely, the executive has to carry it out, and you can very likely go to the court to carry it out because you will probably have a plaintiff withstanding. That is plain to all of us. Professor Miller suggested why not go back to the Appropriations Committee of the House and get them to write it that way and the issue can be finished.

Mr. BENNETT. I did not know we were dealing with a President who would be so contrary to all the happenings of the presidents in the past. I thought maybe he would be willing to talk to me and operate the way other presidents did.

Professor BICKEL. It is not for me to defend the President. Senator ERVIN. I might state that Professor Bickel was raising a question rather issuing a pontifical opinion.

Mr. BENNETT. I might say, Senator, you are a real sweet natured man and you are not high strung like I am. I have a certain amount of glandular exuberance within myself, and this canal issue is something I have lived with all my life, since I was a little child.

Professor BICKEL. I am one to appreciate that.

Senator ERVIN. I was calling your attention to section 2 of the Anti-deficiency Act, which says in a portion:

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.

He was specific in saying if he were counsel to the President, he would rely on this, "or of the development subsequent to the date on which such an appropriation was made available."

Now, leaving out such things as any "portion, any appropriation, reserves may be established to provide for contingencies or to effect savings by or through . . ."-well, it does not exactly do that. But the question in my mind was whether these other developments subsequent to the date on which such appropriation was made available, whether there are any developments down there that are subsequent to that time.

Professor BICKEL. That would be the issue.

Mr. BENNETT. I must say I think the public is entitled to hear this from the White House. I think Members of Congress are entitled to hear this. And no such assertion has yet been made. And

the Council on Environmental Quality did not imply to me that there was anything of this nature. I had a hearing of sorts before them; it was a hearing in the sense that I went before them and gave them my views. But they said when I started that nothing that I said would affect any decision of Government whatsoever. They would not even reveal to me what decision they had rendered, if any. The President had acted and that spoke for them; and I could speak as long as I wanted to speak but nothing I would say would have any effect upon it whatsoever.

Professor MILLER. Have you asked the committee in the House, sir, to ask for this information?

Mr. BENNETT. I have.

Professor MILLER. And what is the answer you got from the committee?

Mr. BENNETT. I have not been refused, but I have not yet been told it will be asked.

Professor MILLER. It is sort of in limbo, then? The Chairman is not saying he is not going to ask for it, so it is really a refusal? Mr. BENNETT. No, I have not had that precisely. The truth is I have asked the Public Works Committee and Appropriations Committee in the House to bring this to a head so we can have a hearing on it. And the truth is we will have a hearing on it in the Appropriations Committee, because I will be asking for the funds for the canal and all this will come out there, including the ecological material. But I do not know what the reaction of the committee will be.

The committee might say, well, it is dead, a fait accompli. If they do, if they waffle on it, we will lose. If they stand up for it. I think we will win, because I think the canal is meritorious.

Professor MILLER. One other question, sir. Do you see any role for the GAO in this type of controversy?

Mr. BENNETT. I asked the Comptroller General for his opinion. He rendered a similar opinion a while ago. I have forgotten precisely what it was. Mr. Clayton, you were my assistant, do you remember?

Mr. CLAYTON. It was on the Public Health Service hospitals and clinic.

Mr. BENNETT. The President said, "We are going to end it." The Comptroller General said you cannot end it, that is a program, a project, you cannot end that. You might cut out a few doctors here and there, but you cannot end Public Service hospitals and clinics. The Comptroller General ruled that.

I asked the Comptroller General to give me an opinion on the canal. I do not see that he can end the canal, either.

Professor BICKEL. Did the administration accept the Comptroller General's decision?

Mr. BENNETT. I do not know. I do not think they have announced yet whether they are going to.

Professor BICKEL. If they do, that is an indication of their being willing to at least accept one means of dealing with Congress on this.

Mr. BENNETT. Well, the thing about it is it would have been so easy for the White House to be fair and yet to deal the canal an

awful blow. It would have been a pretty hard burden for me to carry the canal in 1971 against a declaration of ecological hurt by the White House when nobody cares any more about the truths about ecology. They do not care, as long as it looks like ecology, they are for it. They do not care about the facts in this field anymore. That kind of burden to sustain the canal would have been pretty hard if he had said, "We will leave it out of the budget," or "I recommend that it be repealed, this law." If he had taken either of these courses, it would have been plenty tough for me. But to do it in this peremptory manner, which is a conscience shocker to me, is pretty terrible.

I haven't missed a vote in Congress for over 20 years and there is at this moment a roll call. If you will excuse me, I will leave you now. I will give you any facts and cases that I might be able to find.

Senator ERVIN. I think I would agree with you that the Government from time to time toys with certain ideas or concepts, just like the ladies sometimes like mini skirts and sometimes maxi

coats.

Mr. BENNETT. Thank you, sir. I am not against ecology. I do not know of any Members in the Congress that have passed more laws in that field than I. But I think Congress likes to look at the facts and I think when they do again, they are going to find again that this canal is going to be an assistance rather than a detriment to ecology.

Senator ERVIN. The reason Professor Bickel was asking about the Anti-deficiency Act is that we have found from our investigations that when the executive branch goes to withhold an expenditure of funds, they usually cite the Anti-deficiency Act, which is not couched in the plainest language.

Mr. BENNETT. In the beginning today, I said that there are several statutes that ought to be looked at but I do not think they could give any encouragement to the White House on this canal action.

(The prepared statement follows:)

STATEMENT OF CONGRESSMAN CHARLES E. BENNETT OF FLORIDA

THE PRESIDENT: "HE SHALL TAKE CARE THAT THE IAWS BE FAITHFULLY EXECUTED”—SECTION 3 OF ARTICLE II OF THE CONSTITUTION

THE PRESIDENT'S LEGAL BRIEF ON FLORIDA CANAL TERMINATION REVEALS THAT HE WAS MISLED ON THE LAW

Mr. Chairman, I deeply appreciate this opportunity to appear before your Committee on "impoundment of funds." This is an important subject because it is timely and goes to the roots of our form of government; and I congratulate the Chairman and Committee for considering it.

A learned lawyer, applying for admission to the New York bar in December, 1963 wrote:

"The principles underlying the government of the United States are decentralization of power, separation of power and maintaining a balance between freedom and order.

"Above all else, the framers of the Constitution were fearful of the concentration of power in either individuals or government. The genius of their solution in this respect is that they were able to maintain a very definite but delicate balance between the federal government and state government, on