reach of any other department, except in the mode prescribed by the constitution through the impeaching power. But it by no means follows, that every officer in every branch is under the exclusive direction of the President." Where 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." * The Court scouted the idea that the effect of the responsibility to see that the laws are faithfully executed is to create discretion in the President as to their execution. "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." 20 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 vest completely the legislative power in the President or 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, perhaps even upon legislation in full force and effect for decades. That each successive incumbent of the Presidency is not to have a veto power retroactive to the earliest laws is attested by the words of the Constitution itself. The manner of exercising the veto is narrowly circumscribed. Upon Presidential signature, or upon repassage by two thirds of each House of Congress, the bill "shall become a law." "It is these laws that the successive Presidents are required to see faithfully executed. No means are envisoned in the Constitution for a President to make objection upon his opinion of the constitutionality of existing law other than by urging its repeal on that ground. The same is true if it be argued that the Constitution itself is one of the "laws" to be faithfully executed. It cannot be denied that the President may veto proposed laws upon the ground of unconstitutionality. The dispensing power which would exist under a claimed power to impound appropriations would, however, place the question of constitutionality in the hands of each successive President with the result of unimaginable instability and uncertainty as to the force of any law. The force of any law would thereby be at the whim of the current incumbent of the Presidency. Surely this result cannot have been contemplated by the Framers.

Viewing the "faithful execution" clause as vesting in the President the power to accomplish the duty, the Constitution provides that Congress may prescribe the way in which this power is carried out. Congress "shall have power to 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." Congress accordingly prescribes the way in which the President sees that laws are executed embodying in their context the determination that they are to be executed according to their terms. "The executive cannot see that the laws be executed but in the due forms of law." This limiting view of the relation of the "necessary and proper" clause to the powers granted by Articles II and III received the express approval of the United States Supreme Court as to Article III in Ableman v. Booth. It follows that the President may not exercise legislative powers as a means of carrying out his own powers. This does not, of course, refer to legislative powers which are a part of his express powers, especially the veto power, the manner of using which is constitutionally determined. To sanction withholding of appropriations upon the basis of the Presidential authority to see that the laws are faithfully executed would be to sanction the exercise of legislative power by the President as a means of carrying out an executive power, thereby permitting him to make the Constitution self-executing as to his powers. This the "necessary and proper” clause necessarily precludes.

34

Correlatively, if the President has no dispensing power, he likewise has no power to instruct a subordinate officer to dispense with the execution of a

28 Id. at 610.

29 Id. at 613.

30 U.S. Const. art. I. § 7.

31 U.S. Const. art. I, § 7, par. 2.

32 U.S. Const. art. I, § 8, cl. 18. (Italics supplied).

33 United States ex rel. Stokes v. Kendall, 26 Fed. Cas. 702, 748. (No. 15,517) (C.C. D.C. 1837).

34 21 How. (62 U.S.) 506, 521 (1858).

35

statute. This principle was established in the earliest days of the nation, when a written instruction of the President, directing a naval officer to seize vessels trading with French ports was declared invalid as being in conflict with statute. That the President cannot authorize acts forbidden by law was held specifically two years later by Justice Paterson on circuit, in the trial of one who alleged that the President had authorized him to gather troops with the purpose of a military expedition against a nation with which the United States was not at war. "The president of the United States cannot control the statute, nor dispense with its execution, and still less can he authorize a person to do what the law forbids. If he could, it would render the execution of the laws dependent on his will and pleasure." As recently as 1956, Executive Order No. 10450 was found to extend beyond the provisions of law and hence not to authorize the discharge of incumbents in non-sensitive agencies. The discharging of such an incumbent from the Department of Health, Education, and Welfare by the Secretary was found not authorized, and in violation of the Veterans Preference Act.38

37

In short, the high Constitutional duty to see that the laws are faithfully executed does not confer upon the President the discretion to determine what laws shall be executed and how much. Whereas it may be a practical impossibility that all the laws be executed with equal vigor all the time, the Constitution seems to require no less. It is fallacious to argue that what appears a practical impossibility gives legal justification to acts in defiance of a plain duty.

The Constitution may create the paradox that the President is required to enforce laws that he believes to be unconstitutional. It is not, however, permissible, to resolve this paradox by Presidential defiance of law.

III. INHERENT EXECUTIVE POWER AND AUTHORITY TO IMPOUND

Theodore Roosevelt, making perhaps the most general claim of Presidential power ever made for a Chief Executive, insisted upon "the theory that the executive power was limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by Congress under its constitutional powers." ." 39 The Roosevelt theory was repudiated by the United States Supreme Court as contrary to the Tenth Amendment, viewing its words of reservation of powers not delegated as precluding inherent executive power." Before Roosevelt's enunciation of the "stewardship" theory, the Court had pointed out that "We have no officers in this government, from the President down to the most subordinate agent, who does not hold office under the law, with prescribed duties and limited authority." 41

42

The most recent and perhaps the most significant decision upon the nature and scope of Presidential power was that of Youngstown Sheet and Tube Co. v. Sawyer. This landmark case grew out of President Truman's seizure of strike-bound steel mills in 1952. On April 8 of that year the President issued Executive Order 10340,3 authorizing and directing Secretary of Commerce Charles Sawyer to take possession of and operate certain steel mills. The President rested this action on "the authority vested in me by the Constitution and laws of the United States, and as President of the United States and Commander in Chief of the armed forces of the United States."" The holding in the Youngstown case is seemingly conclusive upon the question of inherent powers. Although there was no majority opinion of the Court, two groups of three Justices each arriving at the same result by different reasoning, there was no disagreement among the six as to the lack of inherent Presidential powers. The consensus was that the investiture of the executive power in the President combined with the "faithful execution" gave him no authority of a legislative nature. The Executive Order was an unconstitutional violation of the basic principle of separation of powers. The opinion of Justice Jackson formulated what has been widely accepted as the correct statement of the

35 Little v. Barreme, 2 Cr. (6 U.S.) 170 (1804).

56 United States v. Smith, 27 Fed. Cas. 1192, 1230. (No. 16,342) (C.C.D.N.Y. 1806). 37 18 Fed. Reg. 2489.

applicable constitutional principle: "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." 45 Congress' power to spend for the national defense and general welfare is plenary, and includes the imposition of conditions for the receipt of grants." Since the power of Congress to act in the area exists, the possibility of "exclusive Presidential control" is eliminated. Put another way, if Congress has power to make unconditional grants and power to make conditions at its discretion, there is no room for Presidentially added conditions. In short, where Congress has a power, there can be no inherent Presidential power."7

Against the holding of the Youngstown case must nevertheless be weighed two earlier Supreme Court decisions which seem to bespeak a Presidential power of different dimensions. These are In re Neagle and United States v. Midwest Oil Co." The former case arose out of the assignment of a United States marshal, Neagle, to protect Justice Stephen J. Field while on circuit in California, in the course of which assignment Neagle shot and killed a man who was attacking the Justice. Expressing the view that the Executive power was not limited to "the enforcement of acts of Congress or of treaties of the United States according to their express terms," 50 the Court found that it was within "the power of the President to take measures for the protection of a judge of one of the courts of the United States . while in the discharge of the duties of his office." " This broad language of the Court is thrown into confusion, however, by a later reference to Neagle's act as having been a duty "imposed on him by the section of the Revised Statutes which we have recited, in connection with the powers conferred by the State of California upon its peace officers, which become, by this statute, in proper cases, transferred as duties to the marshals of the United States." 52 The Neagle opinion is at most inconclusive as to whether an inherent Presidential power or the statute is the source of the marshal's power. A convincing argument could be made that the case in actuality was decided upon the basis of the statute, in which event the dicta of the decision are no authority for the existence of an inherent Presidential power.

54

The Midwest Oil case 53 involved the question as to the power of the President to transfer lands from the public domain to the naval oil reserve, thereby removing them from eligibility for homestead or lease. No statutory authority was given the President to accomplish such transfers. Nevertheless, the Supreme Court upheld the President in his action. The Court held that, although the President could not by his own course of action create a power, Congress might ratify his actions by acquiescence in them. Explicitly, the President is acting as an agent of the Congress." Likewise, no private interest was injured because there was no private right denied, there having been conferred merely a privilege to occupy public lands. An entirely different and easily distinguishable situation existed than in the Oklahoma case, in which a legal right had been created by compliance with the conditions for receipt of grantin-aid funds. It would seem that the Midwest Oil case is no authority for the existence of inherent Presidential powers which might include the impounding power. Congress has by no means acquiesced in a course of conduct in regard

55

45 Youngstown Sheet and Tube Co. v. Sawyer, supra, 637-38.

50

46 Oklahoma v. United States Civil Service Commission, supra note 21.

47 The converse of this proposition and the basic argument of the proponents of executive impounding to prevent segregation is considered in IV, infra. Concisely, this argument is that lack of Congressional power to provide for segregation by appropriation creates presidential power to prevent the use of appropriations for segregation.

48 In re Neagle, 135 U.S. 1 (1890).

49 236 U.S. 459 (1915).

50 In re Neagle, supra note 48, at 64.

51 Id. at 67.

52 Id. at 69. The statute referred to is Rev. Stat. 788, 28 U.S.C. & 549, which provides that "A United States marshal and his deputies, in executing the laws of the United States within a state, may exercise the same powers which a sheriff of such a state may exercise in executing the laws thereof."

53 Supra note 49.

54 Id. at 491.

55 Id. at 471. It is possible that today the Midwest Oil Company would not have standing to sue, for this reason.

56 Supra note 21.

to impounding funds as it had done in regard to the land transfers. Similarly, in grant-in-aid cases legal rights rather than privileges are involved.

It would seem, therefore, that the overwhelming weight of authority is against the existence of any inherent Presidential power to impound appropriated funds.

IV. GRANT-IN-AID STATUTES AND "NATIONAL POLICY"

AS SOURCES OF AUTHORITY TO IMPOUND

63

60

If, as has been suggested, existing statutes regarding the execution of the budget confer no general authority to impound grant-in-aid funds; if the "execution of the laws" clause of Article II confers no such power; and if there is no inherent power over expenditures in the President, any power to impound grants in aid of desegregation must be found either in the statutes which themselves authorize the grants or in a "national policy" of desegregation. A detailed analysis of the multifarious grant-in-aid statutes involved is precluded by space considerations. The major grant-in-aid programs in the administration or results of which racial segregation or discrimination exist have been considered by the United States Commission on Civil Rights." These include grants for library services,5 for hospital construction," for aid to and construction of schools in local areas where Federal establishments have caused a substantial impact on school systems, for public airports," for vocational rehabilitation, for urban renewal and for public housing. In none of the statutes authorizing grants is there a clear and unequivocal grant of authority to the President or to a subordinate executive officer to withhold appropriated funds upon a finding of racial segregation or discrimination in their administration by states or localities. The closest approach to such authority is found in the Library Services Act and in the Vocational Rehabilitation Act, both of which authorize the responsible administrator to withhold funds upon a finding of failure to comply with the conditions of the acts. The former is to provide public library services, defined as serving "free all residents of a community, district or region," and the latter is to provide for "rehabilitating physically handicapped individuals." 68 It is a fair inference that the responsible administrator could withhold funds under these programs if "all residents" were not served by participating libraries or if rehabilitation of "physically handicapped" were based on racial considerations. This interpretation is found by the Civil Rights Commission to be followed by administration regulation in respect to vocational rehabilitation."

67

A second group of grant-in-aid statutes, of which the Federal Airport Act is illustrative, are silent upon the subject. It would seem that silence permits administrative discretion as to imposition of non-discriminatory use of Federal funds as a condition precedent to their receipt. The Civil Rights Commission reports that this technique has been successfully followed in the administration of the Airport Act." The Midwest Oil Co. holding, deriving executive authority from Congressional acquiescence in a course of executive conduct," clearly supports the validity of the application of administrative pre-conditions to the receipt of grant funds, in the event that Congress does not correct such administrative interpretations.

A third group of statutes presents Congress' determination that the appropriated funds shall be spent regardless of segregation in the facilities pro

57 1961 Commission on Civil Rights Report; pt. IV. "Education" at 144-48; pt. V. "Employment" at 81-93, 111-26; pt. VI, "Housing" at 81-118. Hereinafter cited as 1961 Report.

ES Library Services Act, 70 Stat. 293 (1956), as amended, 20 U.S.C. §§ 351-58.

50 Hospital Survey and Construction Act (Hill-Burton Act), 60 Stat. 1040 (1946), 42 U.S.C. $ 291, 291a-291m. The Land Grant College Act. 26 Stat. 417, 7 U.S.C. §§ 321-26, 328-29 carries a similar provision at § 323.

60 64 Stat. 1100 (1950), 20 U.S.C. §§ 236-44.

61 64 Stat. 967 (1950), 20 U.S.C. §§ 631-45.

82 Federal Airport Act, 60 Stat. 170 (1946), 49 U.S.C. §§ 1101-19.

63 Vocational Rehabilitation Act, 41 Stat. 735 (1920), amended to 68 Stat. 652, 29 U.S.C. § 3.

64 Housing Act. 63 Stat. 413 (1949), 42 U.S.C. § 1441; Housing Act. 68 Stat. 623 (1954), 42 U.S.C. § 1451.

65 United States Housing Act, 50 Stat. 888 (1937), 42 U.S.C. § 1401.

20 U.S.C. § 356; 29 U.S.C. § 35 (c).

67 20 U.S.C. § 358 (c).

68 29 U.S.C. § 31.

69 1961 Report, pt. V, "Employment" at 111, citing 45 C.F.R. § 401.14 (a) (2) (1960). 70 Id., pt. V, "Employment at 85, citing 14 C.F.R. $ 550.24 (1) (2) and (5).

In re Neagle and United States v. Midwest Oil Co., supra note 7.

vided. The Hill-Burton Hospital Construction Act provides that a State plan for hospital construction shall not be approved unless assurance is given that hospitals will be made available to all residents without discrimination on account of race, creed or color, except "in cases where separate hospital facilities are provided for separate population groups, if the plan makes equitable provision on the basis of need for facilities and service of like quality for each such group.' ." The statutes providing grants for direct aid and for school construction in federally impacted areas require that "no department, agency, officer or employee of the United States shall exercise any direction, supervision, or control over the personnel, curriculum, or program of instruction of any school or school system of any local or State educational agency." " Detailed formulae are provided under these acts, and admit of little. if any, administrative discretion in arriving at the amounts payable. No power is provided to withhold funds for failure to comply with the conditions of the acts, comparable to provisions in the Library Services Act and the Vocational Rehabilitation Act." It is clear that the Congressional intent did not embrace authorization to impound funds upon the basis that they might be spent in support of segregation.

75

Finding no statutory authority to withhold funds in this third group of statutes necessitates consideration of the impact of the school desegregation decisions upon them, since the acts in question were passed before these decisions. In the context existing since these decisions, two questions are posed: do the decisions in Bolling v. Sharpe and Cooper v. Aaron establish a national policy which empowers the executive to ignore statutory language: if not, may the statutes themselves be subjected to a construction different than their plain meaning by reason of these decisions?

Bolling v. Sharpe decided the unconstitutionality of segregation based on race in the District of Columbia, upon the basis of the due process clause of the Fifth Amendment. The Court's language tends to include the Fourteenth Amendment guaranty of equal protection of the law as an aspect of that due process of law which is protected against denial by the National Government. Proponents of a Presidential power to withhold grant-in-aid funds from segregated schools argue that the Fifth Amendment as interpreted in the Bolling case requires such Presidential action. Cooper v. Aaron, the Little Rock School case, is adduced in support of this view. Speaking of the contention that the Governor of Arkansas was not bound by the decision in Brown v. Board of Education, the Court said: "State support of segregated schools through any arrangement, management, funds, or property cannot be squared with the [Fourteenth] Amendment's command that no State shall deny to any person within its jurisdiction the equal protection of the laws."" It follows, it is argued, that the expenditure of Federal funds for the support of segregated schools is unconstitutional under the Fifth Amendment. Granting the validity of this proposition, however, it does not follow that the power to withhold funds provided by law which may be used for this purpose is thereby conferred upon the President. It would seem, in the light of considerations regarding the scope of his legislative power raised earlier, that Presidential action is constitutionally limited to vetoing the entire appropriation which would be put to constitutionally proscribed uses in some states. To hold otherwise would be to argue that the President may act unconstitutionally to uphold a constitutional principle, the absurdity of which is manifest. The constitutional situation is aptly summarized by Senator Kenneth B. Keating: "This is a classic example of constitutional wrong for which no constitutional remedy exists, other than what we [the Congress] may provide by express enactment." 78

Accordingly, it would seem that the Hill-Burton Act must await Congressional action to bring it into compliance with the constitutional mandate, since judicial review is precluded by existing doctrine as to lack of individual standing to sue. Resort to impounding based on a claim of a constitutional

72 42 U.S.C. § 291 (f).

73 20 U.S.C. §§ 242 (a) and 642 (a).

74 See note 66, supra.

7 Bolling v. Sharpe, 347 U.S. 497 (1954) and Cooper v. Aaron, 358 U.S. 1 (1958). Brown v. Board of Education, 347 U.S. 483 (1954) is not considered, since it dealt with limitations upon the states under the equal protection clause of the Fourteenth Amendment, while the present issue involves limitations upon the National Government. 76 Bolling v. Sharpe, supra at 499.

Cooper v. Aaron, supra at 19.

78 107 Cong. Rec. 7808 (daily ed. May 18, 1961).