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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, sor 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
Mrral's decisione. Did the an end th
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
havbield anggy, the about
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 LAWS 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
the one hand, and between the executive, legislative and judicial branches of the federal government, on the other hand.”
This same learned lawyer, who, incidentally, was admitted to the Bar of the State of New York and was later elected President of the United States in the 1968 elections, recently completely abrogated his thesis in the 1963 paper with an edict not unlike a Catherine de Medici decision of the 16th century.
He destroyed the "delicate balance between the federal government and the state government” by cavalierly breaking a contract between the United States government and the State of Florida, and he also dictatorially repealed an authorized law of Congress by "permanently" halting the CrossFlorida Barge Canal. He did not even give notice to the public or to Congress that he was going to do it, much less allow any objective presentation of views on the subject.
The 18th century French writer Montesquieu wrote in The Spirit of the Laws on the Constitution of England : “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner."
Later, Justice Brandeis said the "doctrine of separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power."
In the recent case of the Cross-Florida Barge Canal, the President both promoted inefficiency in government by stopping a vital and worthwhile naational project, one-third complete, and creating great uncertainty and loss of taxpayers' funds and predictable damage to the environment, but he also acted in an unconstitutional and arbitrary manner.
This brief discusses the President's edict to terminate the Cross-Florida Barge Canal and shows that he was misled on the law backing his decision, just as he was misled by his environmental advisors, to the detriment of the seven million citizens of Florida and the 23 million annual visitors to our state and the economy and national security of America.
The canal case is a current classic in the “impoundment of funds" field.
The responsibility of the President of the United States is as stated in Section 3 of Article 2 of the Constitution to “take care that the laws be faithfully executed.” He has the power of veto in the process of enactment or repeal of a law (Section 7 of Article 1); but after a bill is signed into law and appropriations are made he cannot repeal the law himself without Congressional repealing; and the President must execute or carry out the duly enacted law. He can, of course, recommend that the law be repealed. No principle of American constitutional government is more fundamental than this to our heritage or more clearly stated in our Constitution.
The keystone of our government is its division into the three separate branches: legislative, executive and judicial. One of our founding fathers, President James Madison expressed it well in the Federalist Papers (No. 47) when he wrote: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."
So in defining the powers of the new president our forefathers wrote into our Constitution: "He shall take care that the laws be faithfully executed.”
The Cross-Florida Barge Canal was specifically authorized in 1942 by Public Law 77-675. Although its value to the defense needs of our country were recognized in its authorization, the shortage of manpower for its construction during World War II postponed the appropriations needed for its commencement. But the appropriations have been made continuously ever since 1964 and now total $60 million; and the project is now more than a third complete.
Last year in the House Report on the appropriations bill the following statement was made: "The committee has included in the bill the $6,000,000 including carryover funds, proposed in the budget to continue construction of the project ... the committee does not feel that it would be warranted, in the light of the current facts available, in delaying construction of the project which was started in 1964 and is now about 30 percent complete ...
Considering, therefore, the status of the construction and the need for the project, the committee recommends that the construction work continue and that every effort continue to be made to minimize any adverse effects on the environment, ecology, and fish and wildlife in the area."
It is not proposed to discuss here the merits of the canal; but only the legality of a Presidential edict to terminate the project. The merits which amply justify the project, will be discussed in another presentation. However, the facts are that about $50 million have been spent on this canal (1) which the Joint Chiefs of Staff supported to provide "an additional and shorter line of communication between the Gulf Coast and the East Coast" that would "reduce exposure of shipping to submarine attack" and (2) which several independent studies found to be justified for economic and job producing reasons, and (3) which many geologists and ecologists, and all Congressional public hearings, open to all points of view, gave a clean bill of health to on ecological grounds.
On January 19, 1971 the President issued a press release in which he said, "I am today ordering a halt to further construction of the CrossFlorida Barge Canal."
After repeated requests to the White House, on February 25, 1971 the White House staff furnished the following statement on the legal authority of the President to terminate the Cross-Florida Barge Canal without Congressional approval, reciting that this was the opinion of the Department of Justice.
"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 projects 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)."
The only court decision cited to uphold the quoted conclusion was McKay v. Central Electric Power Cooperative (an R.E.A. Cooperative). This case does not in any way support the President's action on the canal; because, unlike the canal which was specifically authorized and specifically appropriated for, the R.E.A. contracts in the McKay case depended solely for any specific performance on such contracts—upon the language of a general appropriations law for electrical transmission facilities, while the law made no reference whatsoever to particular projects or particular contracts. In fact, the legislative history of the law in the electrical case indicated an intent to exclude the contracts sought to be performed; but this was not relied upon in the appellate decision, but only the fact that the legislation was silent on the specific project and the specific contracts involved. The court observed that the claimants might, despite the court's ruling on specific performance of the contracts, sue the government for breach of contract in another suit.
Clearly, the above cited case is not only no authority for the President's action on the canal matter; but it is in fact authority against the President having authority when the project involved, such as the canal, is both authorized and appropriated for by specific provision of law. This would be true whether a suit is for specific performance or for breach of contract.
The only other authority relied upon by the Administration for its position was the 1967 opinion of Attorney General Ramsey Clark upholding the power of the President to impound Federal-Aid Highway funds before they had been obligated by approval of a specific qualifying project. This impoundment was not to end any project but only to temporarily reduce the level of spending to curb inflation. No contractual obligations of the United States were involved in any way. Clearly that decision is not analogous in any way to the President's order to terminate completely a project duly and specifically authorized and funded by legally enacted law. The Attorney General said:
"It is my conclusion that the Secretary has the power to defer the availability to the States of those funds authorized and apportioned for highway construction which have not, by the approval of a project, become the subject of a contractual obligation on the part of the Federal Government in favor of a State.
Moreover, since the purpose of action here is not to reduce the total amount of the funds to be devoted to the Federal-Aid Highway Program