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but merely to slow the program for a limited period, hopefully it will have no adverse effect on the completion of the program 'as nearly as practicable' by the end of the period envisaged in 23 U.S.C. 101 (b)."
The Attorney General in the above opinion stated :
"The Courts have recognized that appropriation acts are of a fiscal and permissive nature and do not in themselves impose the executive branch an affirmative duty to expend the funds. Hukill v. United States, 16 C. CI. 562, 565 (1880); Campagna v. United States, 26 C. Cl. 316, 317 (1891); Lovett v. United States, 104 C. Cl. 557, 583 (1945), affirmed on other grounds, 328 U.S. 303 (1946); McKay v. Central Electric Power Cooperative, 223 F.2d 623, 625 (C.A.D.C. 1955)."
The Library of Congress Reference Service paper "Impoundment by the Executive of Funds which Congress Has Authorized It to Spend or Obligate" at page 15 observes of the above Attorney General's, opinion that the cited cases do not "sustain the broad proposition for which they were cited.”
In the Hukill case, above cited, the United States had enacted an appropriations law which would pay postal employees for services rendered in the South during the Civil War, under certain circumstances; and then provided that any unexpended balance would be turned over to the Treasury in two years. After the two years expired, Hukill attempted to enforce the payment terms of the appropriations law. Although holding against Hukill because he had not shown that he had not theretofore been paid for the same services by the Confederacy, the Court also held that if he had not been so previously paid he could have recovered under the above statute. In deciding this, the Supreme Court said:
"An appropriation by Congress of a given sum of money, for a named purpose, is not a designation of any particular pile of coin or roll of notes to be set aside and held for that purpose, and to be used for no other; but simply a legal authority to apply so much of any money in the Treasury to the indicated object.
"Every appropriation for the payment of a particular demand, or a class of demands, necessarily involves and includes the recognition by Congress of the legality and justice of each demand, and is equivalent to an express mandate to the Treasury officers to pay it. This recognition is not affected by any previous adverse action of Congress; for the last expression by that body supersedes all such previous action."
The Hukill case is clearly not a case that supports as legal the action of the President in the canal matter. To the extent that it is in point, it would support the continuation of the canal under the duly enacted appropriations laws even if there were no prior authorization law. However, the canal has no deficiency in authorization and does not need to rely on the Hukill case.
The Campagna case, above cited, is a case in which a Marine Band musician sued for a salary of $23 per month as distinguished from a rate of $17 since the appropriations statute involved provided for “thirty musicians at forty dollars, eight at twenty-six dollars, and fifteen at twenty-three dollars per month each, nine thousand dollars.” After observing that Congress was confronted with paying musicians whose pay varied because of longevity, etc., the Court held as follows:
"An appropriation is per se nothing more than the legislative authorization prescribed by the Constitution that money may be paid out at the Treasury. Frequently there is coupled with an appropriation a legislative indication that the designated amount shall be paid to a person or class of persons, and from such an appropriation a statutory right arises upon which an action may be maintained. Occasionally an appropriation act goes still further, and expressly or by necessary implication changes preexisting law so as permanently to increase or diminish the compensation of an officer, agent, or employe of the Government. (Faris Case, 23 Stat. L., 374)."
The above case is no authority whatsoever for the termination of any project. Insofar as there was a project in the Campagna case-the hiring of musicians—there was no interruption of it. Only the amount of wages was ruled adverse to the claimant and even this was upon an interpretation of a particular statute, as affected by legislative intent.
In the Lovett case, the only case cited above that has not already been discussed, the plaintiffs sued for their wages as employees of the U. S. Government for a period of time after November 15, 1943, Congress having enacted in July
of 1943 a law which provided that no Federal funds should be expended to pay them for any services rendered after November 15, 1943, unless prior to such date the President should have appointed them with the advice and consent of the Senate." They were never so appointed, but they served beyond the November 15 date under less formal appointments. The Court ruled that the statute did not destroy the obligation of the Government to pay for services rendered and therefore, did not prevent a judgment in favor of the plaintiffs for the wages involved even for services after the November 15 dates. In the opinion of Justice Madden in this case, the following statement was made:
"It may well be that under our Constitution, and under any constitution which might be devised for a free people, one branch of the Government could, temporarily at least, subvert the Government. The Judges might refuse to enforce legal rights or convict criminals. The President might order the Army and Navy to surrender to the enemy. Congress might refuse to raise or appropriate money to pay the Preisdent or the Justices of the Supreme Court and the other courts. But any of these imagined actions would not be taken pursuant to the Constitution, but would be acts of subversion and revolution, the exercise of mere physical power, not lawful authority. And conduct by any branch of the Government less ruinously subversive, but, so far as it goes, equally unconstitutional, is likewise an exercise of physical power rather than lawful authority."
It is clear that the authorities relied upon by the Justice Department in advising the White House, do not give any support at all to the action taken. In no such case was there specific authorization and specific appropriation for a project that was terminated ; and the cases clearly deny, rather than support, the Administration's position. In fact, the decisions could not hold otherwise in view of the specific Constitutional mandate that the President "shall take care that the laws be faithfully executed." The same memorandum which revealed the Department of Justice recitation of cases above referred to also observed:
“The Department of Justice advises us that since the funds presently available for construction of the canal have been appropriated without fiscal year limitation, no further legislative action would be necessary to make such funds available for a resumption of construction. Whether a reauthorization would be necessary as a basis for future appropriations is a matter for Congress to decide."
In making the above statement, the Justice Department has in fact conceded that the President cannot repeal a law; and since the laws that authorized and appropriated for the canal still exist they must admit, if they are to be logical, that the Constitution requires these laws to be carried out by the President until they are legally repealed.
In view of the Constitutional provision which binds the President to execute and carry out the law, and in view of the fact that the Department of Justice has produced no authorities to support the President's power to terminate the canal (which it obviously could not do in the face of the Constitution), only a few leading cases will now be discussed which the Justice Department failed to mention but which clearly show that the President has no power to terminate the canal unless and until the laws providing for the project are duly repealed. The President does, of course, have the right to veto a bill; but once it is passed with Presidential consent or by another vote overriding the veto he must carry out the laws of the land. Otherwise, as Justice Madden said, above, the deed would be one of physical power rather than of lawful authority.
"Under our system of government it is the legislative branch which is to make and decide policy. The executive branch is supposed to carry out the policies declared by Congress. (31 Cong. Dig., No. 1, p. 1, at 2 (1952).) (See MacLean, President and Congress : The Conflict of Powers, 61 (1955).)"
The following comments rely heavily on the excellent article by Gerald W. Davis in the October, 1964, edition of "Fordham Law Review."
Whether the Constitution in directing the President to "take care that the laws be faithfully executed” vests in him discretion as to the execution of laws was argued in Kendall v. United States er. rel. Stokes. (37 U. S. (12 Pet.) 524 (1838).) Postmatser Kendall had disallowed claims of Stokes for carrying the mail. Congress passed an act directing Kendall to credit Stokes with the amount due. Kendall again refused to pay the claim, contending that only the Presi
dent, under the power to see that the laws are executed could require that he pay the claims. The Supreme Court upheld a mandamus ordering the payment, holding that the President was not impowered to dispense with the operation of law upon a subordinate executive officer :
"When Congress imposes upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the Constitution ... in such cases, the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President ...
To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the Constitution, and entirely inadmissable."
To avert a nationwide strike of steelworkers in April, 1952, which he believed would jeopardize national defense, President Truman issued an Executive order directing the Secretary of Commerse to seize and operate most of the steel mills. According to the Government's argument in Youngstown Sheet & Tube Co. v. Sawyer (343 U. S. 579 (1952)), the directive was not founded on any sperific statutory authority, but upon “the aggregate of the President's constitutional powers as the Nation's Chief Executive and the Commander in Chief of the Armed Forces." The Secretary of Commerce issued an order seizing the steel mills and the President promptly reported these events to Congress, but Congress took no action. It had provided other methods of dealing with such situations and had refused to authorize governmental seizures of property to settle labor disputes. The steel companies sued the Secretary and the Supreme Court rejected the broad claim of power asserted by the Chief Executive, holding that “the order could not properly be sustained as an exercise of the President's military power as Commander in Chief ... nor ... because of the several constitutional provisions that grant executive power to the President."
Mr. Justice Black, who delivered the opinion of the Court, noted: "In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent or equivocal about who shall make laws which the President is to execute. The first section of the first article says that ‘All legislative Powers herein granted shall be vested in a Congress of the United States . . . After granting many powers to the Congress, Article I goes on to provide that Congress may 'make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
"The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress-it directs that a presidential policy be executed in a manner prescribed by the President ... The power of Congress to adopt such public policies as those proclaimed by the order is beyond ques. tion ... The Constitution does not subject this lawmaking power of Congress to presidential or military supervision or control
"It is said that other Presidents without congressional authority have taken possession of private business enterprises in order to settle labor disputes. But even if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution in the Government of the United States, or any Department or Officer thereof.'”.
Mr. Justice Douglas, in a concurring opinion, noted:
"The power to recommend legislation, granted to the President, serves only to emphasize that it is his function to recommend and that it is the function of the Congress to legislate. Article II, Section 3, also provides that the Presi. dent 'shall take care that the laws be faithfully executed.' But ... the power to execute the laws starts and ends with the laws Congress has enacted."
The three dissenting Justices did not assert that the President could act contrary to a statute enacted by Congress. They argued that there was no statute which prohibited the seizure and that there was "no evidence whatever of any Presidential purpose to defy Congress or act in any way inconsistent with the legislative will."
Mr. Justice Jackson, concurring with the majority opinion, remarked on the “proverty of really useful and unambiguous authority applicable to concrete
problems of executive power as they actually present themselves." He suggested that "Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” Justice Jackson then listed the situations in which a President may doubt, or others may challenge, his powers and indicated the legal consequences of the factor of relativity to the powers of Congress :
"1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate ... If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power ...
**2. When the President acts in absence of either a congressional grant or denial of authority, he can only reply upon his own indepenednt powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
"3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."
In the canal matter, the President has taken a step such as Justice Jackson describes in the third situation above, that is one incompatible with the intention of Congress in duly enacted laws. Therefore, "he can only rely upon his own constitutional powers, minus any constitutional powers of Congress."
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).
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 payment-see, 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 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. 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. The Canal Authority of the State of Florida, the official body for this project in the state, has filed suit in the Federal Court in Jacksonville asking that the President's order be declared to be of no effect, illegal and constitutionally void. Other official governmental bodies involved have also entered this suit, including the Jacksonville Port Authority and perhaps other outside organizations and individuals have joined them by now.
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 vet been allowed. Particularly, since the evidence is strong that the reasons for the President's action seem to have overlooked the fact that the Okla waha can be inexpensively bypassed and that no wildlife preservation is in fact achievable by terminating the canal these being the grounds relied upon in the President's press release.
It would be very appropriate and helpful if the committee could look into the constitutionality of the President's action on the canal matter and express an opinion thereon.
Senator Ervin. Thank you very much. We appreciate your contribution.
The subcommittee will stand in recess until 2:15 this afternoon, when we will reconvene at the same place.
(Whereupon, at 12:15 p.m., the subcommittee recessed until 2:15 p.m. of the same day.)
Senator Ervin. The subcommittee will come to order. Counsel will call the next witness. Mr. EDMISTEN. Mr. Chairman, our next participant is Hon. F. C. Turner, Federal Highway Administrator, of the Department of Transportation.
Mr. Turner has somebody accompanying him and he may either sit up here at the end of the round table or come to the witness chair.