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 execution-Report 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 yet been allowed. Particularly, since the evidence is strong that the reasons for the President's action seem to have overlooked the fact that the Oklawaha 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.)

AFTERNOON SESSION

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.

STATEMENT OF HON. F. C. TURNER, FEDERAL HIGHWAY ADMINISTRATOR, DEPARTMENT OF TRANSPORTATION; ACCOMPANIED BY DAVID E. WELLS, CHIEF COUNSEL, FEDERAL HIGHWAY ADMINISTRATION

Mr. TURNER. At your pleasure, Mr. Chairman.

Senator ERVIN. Either way that suits your pleasure.

We are delighted to welcome you to the subcommittee and I wish to express to you the appreciation of the subcommittee for your willingness to come and assist us in this study.

Mr. TURNER. I have with me Mr. Dave Wells, Chief Counsel for the Federal Highway Administration. With your permission, I would like to have him here with me.

Senator ERVIN. We are delighted to have Mr. Wells here with us. also.

Mr. TURNER. Mr. Chairman, I am here to discuss with your subcommittee the action that the Federal Highway Administration has taken pursuant to several past directives to reduce Federal spending in recognition of the need for curbing inflationary pressures. There have been four limitations imposed on the obligation of Federal-aid highway funds.

1. On November 23, 1966, an initial limitation of $3.3 billion was established for fiscal year 1967.

The $3.3 billion limitation reflected a program reduction of $700 million from the previously expected level of $4 billion.

2. On January 23, 1968, a limitation of $4.115 billion was established for calendar year 1968.

No more than 45 percent of the calendar year limitation could be incurred through June 30, 1968. The new limitation represented a reduction of $600 million in the approximately $4.7 billion that was expected to be available during calendar year 1968.

3. On September 6, 1968, the program was suspended for 3 full months in order to reduce expenditures during the fiscal year by $200 million.

This suspension was one of the measures taken in response to the Revenue and Expenditure Control Act of 1968, which, as you know, directed that government expenditures be reduced by a total of $6 billion during fiscal year 1969. The reduction in Federal-aid highway expenditures during fiscal year 1969 was accomplished through the temporary deferral of new project approvals for a period of about 3 months.

4. On September 4, 1969, President Nixon directed a 75 percent reduction in new construction by the Federal Government. Also, at the same time, the President urged the States and local governments to follow the example of the Federal Government by cutting back temporarily on their own construction plans.

Since the Federal-aid highway program provides grants-in-aid for the construction of highways by the States, curtailment of the program in line with the President's statement involved actions to be taken by the States.

No further steps were taken to prescribe a specific curtailment of the Federal-aid highway program, pending developments in connec

tion with the voluntary action of the States in complying with the President's request. The States' deferral plans indicated a program level of $1.080 billion less than the $5.044 billion originally proposed for the fiscal year ending June 30, 1970. The President subsequently withdrew his request for deferral on March 17, 1970.

For fiscal 1971, the obligation ceiling as now set is $4.6 billion. In summary, the ceilings on Federal-aid highway funds available for obligation during a fiscal or calendar year, including the special limitations prescribed for fiscal year 1967, calendar year 1968, fiscal year 1969 and the voluntary limitation requested by the President during fiscal year 1970 did not affect the fiscal year apportionments authorized by Federal-aid highway legislation nor the availability of revenues in the highway trust fund.

The funds apportioned to the States but not obligated during a year were carried forward and remained available for obligation in later years. Revenues accruing to the highway trust fund and not required for current expenditures were invested by the Treasury Department in public debt securities and remained available to the credit of the trust fund for making payments to the States at some later date.

We recognize that the impact in individual States varies to some degree because there is no way to take into consideration what each State would have obligated during the fiscal year had there been no deferral. In other words, some States may have planned proportionately higher programs than could be accomplished under the lower obligation amounts allowed, whereas there would be little or no impact in other States because they have not planned large programs. The point that I would like to stress here is that each State received its proportionate share of the amount of funds available under the limitation.

As you know, the highway program is a fairly substantial part of the total public works program in all States. The immediate effect of a reduction in the availability of funds is to defer the approval of projects that permit them to move from the planning and engineering stage over to actual construction; to obligate the funds, in other words.

The control step that we take within FHWA is to defer the letter authorizing the State highway department to advertise for bids. We set maximum limits on the total amount of new obligations which the State would be permitted to enter into within a given period of time usually on a quarterly basis.

Now I would like to summarize the statutory authority which provides the basis for the administrative actions which I have just outlined.

Among the issues with respect to executive withholding or impoundment of funds which arise in the context of title 23, United States Code, which deals with the Federal-aid highway program, are: (1) The intent of Congress as expressed in title 23 and (2) whether the States have vested rights in apportioned highway funds.

In 23 U.S.C. 101 (b), Congress declared that acceleration of construction of the Federal-aid highway system and prompt completion of the Interstate System are in the national interest. The language is

not mandatory. The courts have held that such statements of policy do not add to or alter the specific operative provisions of a statute. These citations appear in the February 25, 1967, opinion of the Attorney General (p. 14), which opinion we are submitting for the record:

(The documents referred to above follow :)

[42 Op. A. G. No. 32 (1967)]

OPINION OF THE ATTORNEY GENERAL OF THE

UNITED STATES

FEDERAL-AID HIGHWAY ACT OF 1956-POWER OF

PRESIDENT TO IMPOUND FUNDS

Appropriation acts are of a fiscal and permissive nature. They authorize but do not compel the executive branch to expend funds.

Under the Federal-Aid Highway Act of 1956 (June 29, 1956, c. 462, 70 Stat. 378, as amended, 23 U.S.C. 101 note), the States have no inchoate right to funds apportioned to them prior to the actual approval of a project by the Secretary of Transportation.

The hortatory declaration of congressional policy set forth in 23 U.S.C. 101 (h) does not constitute a mandate to approve all qualifying projects for which funds are available.

The highway taxes imposed under the Highway Revenue Act of 1956 (June 29, 1956, c. 462, 70 Stat. 387, 397) are not paid directly into the Highway Trust Fund, and the assets in that fund are neither directly nor automatically available for the payment of Federal contributions to the States. The President has the power to impound Federal-aid highway funds after they have been apportioned to the States but before they have become obligated as the result of the approval of a specific qualifying project.

THE SECRETARY OF TRANSPORTATION.

FEBRUARY 25, 1967.

DEAR MR. SECRETARY: This is in reply to your letter of February 21, 1967, requesting my opinion as to the legality of a reduction in the amount of Federal-aid highway funds which may be obligated during the Fiscal Year ending June 30, 1967.1

The facts underlying your inquiry are as follows: President Johnson's message to Congress of September 8, 1966, Transmitting Proposals for Measures for Curbing Inflation and Preserving our National Economy, announced that a reduction or deferral of lower priority Federal expenditures by approximately $3 billion was required in order to assure the continuing health and strength of our economy (H. Doc. 492, 89th Cong., 2d sess., pp. 1, 4). Pursuant to this mandate the Director of the Bureau of the Budget by letter dated November 7, 1966, advised you, in your then capacity of Under Secretary of Commerce for Transportation, that the Federal-aid highway program would have to bear a fair and feasible share of the deferrals.

In line with subsequent discussion with and instruction from the Bureau of the Budget, the Federal Highway Administrator advised his division and regional engineers on November 23, 1966, that the Federal-aid highway program was being limited to $3.3 billion in total project obligations during Fiscal Year 1967. The instructions indicated that the limitation was in recognition of the need for reducing non-military Federal expenditures in order to curb inflationary pressures.

Prior to this action it was anticipated that $4 billion would be made available for obligation during Fiscal Year 1967. The effect of the action is to defer

1 Although the Department of Commerce is still technically responsible for the administration of the Federal aid highway program, 23 U.S.C. 101, these functions are in the proc ess of being transferred to the Department of Transportation pursuant to section 6(a) (1) (A)-(G) of the Department of Transportation Act, October 16, 1966, P.L. 89-670, 80 Stat. 931, 937.

Vol. 42, Op. No. 32.