upon the acts of the legislature," "calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body."" Specific control over the exercise of legislative authority concerning the armed forces, however, was considered to be in their constituents and not in the President.

V. SEPARATION OF POWERS AND EXECUTION OF THE LAWS

The doctrine of the Separation of Powers comprises . . . one of the two great structural principles of the American constitutional system. . [F]rom it certain other ideas follow fairly logically: First, that the three functions of government are reciprocally limiting; Secondly, that each department should be able to defend its characteristic function from intrusion by either of the other departments; Thirdly, that none of the departments may abdicate its powers to either of the others."7

The division of authority and responsibility among the three branches of the Government was described by Chief Justice John Marshall early in the Nation's history: "The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law... " 48 Over 100 years later the Supreme Court reaffirmed this basic constitutional division between the three branches of the Government." This decision has never been qualified by the Supreme Court or by the lower Federal courts.50

Disputes as to the respective powers of Congress and the President seldom resolve themselves into issues that can be settled in the courts. Accordingly there are few authoritative decisions to be found on the point.

In theory, the Executive power and the Legislative power are independent and separate, but it is not always easy to draw the line and to say where Legislative control and direction to the Executive must cease, and where his independent discretion begins. In theory all the Executive officers appointed by the President are his subordinates, yet Congress can undoubtedly pass laws limiting their discretion and commanding a certain course by them which is not within the power of the Executive to vary. Fixing the method in which Executive power shall be exercised is perhaps one of the chief functions of Congress. By its legislation it often creates a duty in the Executive which did not previously exist. Then in prescribing how that duty is to be carried out, it imposes restrictions that the Executive is bound to observe.1

Sometimes it is hard to remember, but 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." 52

There is no provision of the Constitution which specifically requires the Executive Branch to spend money appropriated by Congress. The President is required, however, to "take Care that the Laws be faithfully executed.” 53 Whether this Constitutional provision vested in him discretion as to the execution of acts of Congress was argued in Kendall v. United States ex rel. Stokes. Postmaster 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 President, 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

44 The power of veto contained in U.S. Const. art. I. § 7, cl. 2.

45 The Federalist No. 73, at 495 (Cooke ed. 1961) (Hamilton).

46 The other is the doctrine of Dual Federalism. (Footnote added.)

47 Corwin & Koenig, The Presidency Today 8 (1956).

4 Wayman v. Southard, 23 U.S. 1, 44 (1825).

49 Springer v. Philippine Islands, 277 U.S. 189 (1928).

50 Brownell, Separation of Powers: Executive and Legislative Branches, 60 Dick. L. Rev. 1 (1955).

51 Taft, Our Chief Magistrate and His Powers 125 (1925).

52 31 Cong. Dig., No. 1, p. 1, at 2 (1952). See MacLean, President and Congress : The Conflict of Powers 61 (1955).

53 U.S. Const. art. II. § 3.

54 37 U.S. (12 Pet.) 524 (1838).

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....55

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 inadmissible.50

57

To avert a nation-wide strike of steel workers in April, 1952, which he believed would jeopardize national defense, President Truman issued an Executive Order directing the Secretary of Commerce to seize and operate most of the steel mills. According to the Government's argument in Youngstown Sheet & Tube Co. v. Sawyer, 58 the directive was not founded on any specific 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 .. ." 59 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." 60

The Youngstown case is readily distinguishable on its facts from the problem of appropriations for defense purposes desired by Congress but not the President. Pertinent portions are set forth herein at length, however, since the opinions of members of the Court appear applicable to the matter at hand. 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 nor 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 question. . . . 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 posession 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." 61"

Mr. Justice Douglas, in a concurring opinion, noted that "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 President '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." 63

Mr. Justice Jackson, concurring with the majority opinion, remarked on the "poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually preesnt 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 rely upon his own independent 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."

The latter situation (3), as discussed by Mr. Justice Jackson, more nearly relates to the RS-70 and similar controversies.

Mr. Justice Jackson then noted that "the Constitution expressly places in Congress power to raise and support Armies' and 'to provide and maintain a Navy.'. . . This certainly lays upon Congress primary responsibility for supplying the armed forces. Congress alone controls the raising of revenues and their appropriation and may determine in what manner and by what means they shall be spent for military and naval procurement.”*

The issues considered in the Youngstown case are similar in many respects to the issue involved in the matter of utilizing funds to implement Congressional defense policies. Without doubt Congress is empowered to appropriate funds for defense purposes." 68 This is the same basic consideration involved in the Youngstown case, wherein Congress had provided methods other than those employed by the President for the settlement of labor disputes. Once Congress has enacted laws relative to the utilization of appropriated funds for defense purposes, it is the President's duty to see that they are "faithfully executed." The Constitution does not subject the law-making power of Congress to presidential control, except for the veto process. The fact that Presidents in the past may have overridden congressional appropriations does not deprive Congress of its constitutional authority.

The matter of Congressional appropriations for defense purposes lies in the third category of congressional-presidential relationships set forth by Justice Jackson. "Exclusive presidential control" cannot be sustained and the PresiIdent is not empowered to impose conditions upon the exercise of congressional authority in this field." The weight of authority is against the existence of an inherent presidential power to impound appropriated funds.

63 Id. at 703 (Vinson, C.J., dissenting).

64 Id. at 634 (concurring opinion).

6 Id. at 635 (concurring opinion).

6 Id. at 635-38 (concurring opinion).

67 Id. at 643 (concurring opinion). (Emphasis omitted.)

70

65 Corwin, The Constitution and What It Means Today 30 (1st atheneum ed. 1963). 69 See Kauper, The Steel Seizure Case: Congress, the President and the Supreme Court, 51 Mich. L. Rev. 141 (1952).

70 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).

VI. THE AUTHORIZATION AND APPROPRIATION OF FUNDS

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 execution." This division of authority was well 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."

1972

Congress then, 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."

A distinction must be made between the authorization and the actual appropriation of funds for a specified purpose. As indicated previously," an act appropriating funds for defense purposes serves to implement a preceding authorization act passed by Congress.

Because of some extremely broad authorizations of appropriations for the procurement of aircraft, missiles, and vessels that were granted in the 1940's, the Committee on Armed Services came close to legislating away their major responsibilities in the shaping of defense legislation." While the Committees on Armed Services retained jurisdiction over manpower legislation, military pay measures, and military construction authorizations, only a small part of the defense program for a fiscal year came before these Committees for legislative review. As a result, the Appropriations Committees alone gave substantial consideration to the over-all defense budget."

79

In the realization that a preponderant part of the defense program was based on major weapons, the Committee proposed that appropriations for procurement of major weapons should be subject to new authorizations." Public Law 86-1497 was the first law requiring congressional authorization for appropriations for the procurement of aircraft, missiles, and naval vessels. This law was subsequently modified by Public Law 87-4360 to require similar authorization for the research, development, test, and evaluation associated with aircraft, missiles and naval vessels.

Public Law 88-174 extended this authority to require authorization of appropriations for all research, development, test, and evaluation carried on by the Department of Defense. The law today reads as follows:

"No funds may be appropriated after December 31, 1960, to or for the use of any armed force of the United States for the procurement of aircraft, missiles, or naval vessels, or after December 31, 1962, to or for the use of any armed force of the United States for the research, development, test, or evaluation of aircraft, missiles, or naval vessels, or after December 31, 1963, to or for the use of any armed force of the United States for any research, development, test, or evaluation, unless the appropriation of such funds has been authorized by legislation enacted after such dates.81

It seems clear that an authorization of funds for a specific defense purpose is not considered to eliminate the exercise of discretion as to either the ap

71 Report of the President's Committee on Administrative Management at 15 (1937). 72 Ibid.

73 Committee on Organization of the Executive Branch of the Government Report on Budget and Accounting in the U.S. Government at 12-13 (1955),

74 See note 12 supra.

75 108 Cong. Rec. 6303 (1962) (remarks of Senator Russell).

76 See generally Whelan, Legislative and Regulatory Activity in Research and Development Contracting 59 (1963).

77 For an exhaustive study on the consideration of defense budgets by the Appropriations Committees, see Huzar, The Purse and the Sword (1950).

78 H.R. Rep. No. 1138. 88th Cong., 2d Sess. (1963).

79 Act of Aug. 10, 1959, § 412(b), 73 Stat. 322.

80 Act of April 27, 1962, § 2. 76 Stat. 55.

81 77 Stat. 329, 5 U.S.C. § 171a note (Supp. V. 1963).

propriation or the expenditure of funds for that purpose. The meaning that Congress attaches to the term is indicated in the following colloquy which occurred on the floor of the House when it was determined to "authorize" funds for the RS-70:

"Mr. Brown: . there has been a great deal of discussion throughout the years as to what the word 'authorized' really means, in connection with legislation, when the President is authorized to do something. But the usual conclusion is that the will of the Congress is expressed in using the word ‘authorized,' and it also expresses the desire of the Congress.

82

"Mrs. St. George: In other words, it means a pious hope-and sometimes'Hope deferred, maketh the heart sick'; is that correct?

83

84

85

"Mr. Brown: It goes a little further than that. I would suggest, if you check the records, that while we authorize many expenditures, the money is not always appropriated, and even if so, the expenditures are not always made by the President. But usually when the word 'authorized' is used in legislation, the Chief Executive accepts it as more or less expressing the desire and the will of the Congress, and quite often he goes along with that. . . .8 "Mr. Cannon: All Members of the House understand that the word ‘authorized' as used in this connotation, means 'permitted'-and nothing more." 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. An argument that the President's authority as Commander in Chief gives him power to disregard a legislative mandate to use appropriated funds for specified purposes which Congress has found necessary for national defense, would seem equally applicable to any other legislation relating to the armed forces. Yet Congress has enacted an enormous amount of legislation on the subject and the Supreme Court has, from time to time, struck down executive action found to be in conflict with statutory provisions. "It is recognized that Congress may grant or withhold appropriations as it chooses, and when making an appropriation may direct the purposes to which the appropriation shall be devoted. It may also impose conditions with respect to the use of the appropriation, provided that the conditions do not require operation of the Government in a way forbidden by the Constitution. . 987 The executive

86

branch is limited by the appropriation with respect to the amount, purpose and period of availability of the money made available for obligation and expenditure.

88

The Naval Appropriation Act of March 3, 1909, provided that no part of the appropriations therein made for the Marine Corps would be expended unless officers and enlisted men of that Corps served on board certain vessels in detachments of not less than eight percent of the enlisted men of the Navy on such vessels.89

"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."

1990

82 108 Cong. Rec. 4691 (1962) (remarks of Representative Brown).

83 Ibid (remarks of Representative St. George).

84 Ibid (remarks of Representative Brown).

85 Ibid (remarks of Representative Cannon).

se See, e.g., Harman v. Brucker, 355 U.S. 579 (1958), where the action of the Secre tary of the Army in issuing less than honorable discharge to two soldiers was held inconsistent with law.

67 Brownell, supra note 50, at 3.

8s Chermak, Financial Control: Congress and the Executive Branch, 17 Mil. L. Rev. 83 (1962).

89 Act of March 3, 1909, ch. 255, 35 Stat. 773. This provision was considered constitutional, 27 Ops. Att'y Gen. 259 (1909).

Spaulding v. Douglas Aircraft Co., 60 F. Supp. 985, 988 (S.D. Cal. 1945), aff'd, 154 F.2d 419 (9th Cir. 1946).