the question is how do you define "adjournment,” and so on, how did he define these terms?

In the Pocket-Veto case and the Wright case, which are the two leading cases, it was left in a somewhat uncertain status. Certainly, the Pocket-Veto case, in the 1920's, upholds the Wright case, and the Wright case does not seem to justify President Nixon's assertion of the right in December of 1970.

Senator GURNEY. Also, the business about impoundment of appropriated funds. Is there something wrong with the President's power there?

Professor MILLER. I know of no constitutional or statutory provision that permits him to do that, sir.

I think when the Congress appropriates funds for designated objectives, whatever they might be, whether I agree with them or not, they should be spent. I do not say every dollar should be spent, because I think money should be saved when it can be saved, but nevertheless I believe that the President cannot say, in effect, "I have an item veto over certain appropriations of Congress." The President has done this to the extent of $12 billion. I can itemize some of that for you, if you wish.

Senator GURNEY. I do not think you need to, because we did have extensive hearings on that matter before this subcommittee and, of course, those hearings indicated, as we all know, that impoundment of funds has been done, I guess, almost from the beginning of the Republic, but since the 1940's, by a great many Presidents, involving billions and billions of dollars.

Professor MILLER. Every President since Franklin Roosevelt, yes, sir, has done it, and mostly in national security matters mostly.

Senator GURNEY. It irritates Congress a good deal. I would agree with you. But, is it your contention that this is illegal and unlawful? Is that it?

Professor MILLER. If you want a flat answer, I will give you a flat answer: "Yes, sir."

Senator GURNEY. You do not think that the policies followed since, as you have pointed out, Franklin Roosevelt's time, I guess some 30 years or more, do not constitute some sort of a precedent in this area of legislative and Presidential powers, the gray area that you talk about?

Professor MILLER. You can look to past practices of Presidents, but the fact that the Presidents have acted in certain ways in the pastand many of them have done it, I would be the first to admit-does not seem to me to provide a valid basis for present action. I just do not see it. I do not understand the argument-I understand it, but I do not agree with it.

Senator GURNEY. Well, as I say, there may be a lot of disagreement. There is in the Congress. But it is something that has been done, of course, for many, many years by many, many Presidents.

Professor MILLER. In a limited sense, Senator, and never to the extent which we have it today. No President has impounded as many dollars as has the present administration.

Senator GURNEY. Well, I would invite your attention to the extensive subcommittee hearings that indicate that all Presidents since F. D. R. have used this very widely.

Professor MILLER. But in national security matters and to a limited extent, yes, sir.

Senator GURNEY. What about the revelations in the Pentagon Papers?

Professor MILLER. What about them, sir?

Senator GURNEY. What do they have to do with this Executive order?

Professor MILLER. It seems to me that the Pentagon Papers-at least the way I read the newspapers and part of the Pentagon papers themselves show that to some extent the Congress was deceived by the executive branch in past administrations-not this administration but past administrations.

Senator GURNEY. What does that have to do with Executive Order 11605?

Professor MILLER. All that I am trying to point out here, again, Senator, is the burgeoning of Executive power in many respects: in the context of this Executive order; in the Pentagon Papers; in refusing to testify before Congress; and, in effect, according to some reports I have seen, in actually deceiving the Congress.

Senator GURNEY. Is it your argument that President Nixon deceived the Congress

Professor MILLER. No. I said it was not

Senator GURNEY. In 11605?

Professor MILLER. Obviously, Senator Gurney, I am not making that argument. It is obvious.

Senator GURNEY. Well, I think it is well to sort out these things because we are discussing the constitutionality of the Executive order. Professor MILLER. Yes, and I would be happy to do what I can.

Senator GURNEY. There is another point here that troubles me, and that is this reference to the President's flat assertion that only he has the right to name judges to the Supreme Court.

Professor MILLER. That was after the

Senator GURNEY. I mean, does somebody else have the right to name them?

Professor MILLER. No. As I interpolated in my oral remarks, I qualified that by saying, with the idea that the Congress or the Senate has only a rubberstamp power. This is the statement made by President Nixon following the nomination of Judge Carswell to the Supreme Court.

Senator GURNEY. Well, I am not so sure about that.

He found out in his previous nomination that there was no rubber stamp.

Professor MILLER. I only made the statement, and all I am doing is quoting the President.

Senator GURNEY. But no one else does have the right?

Professor MILLER. He has the right by the Constitution to nominate. He has the power and the duty and the right to nominate. The Senate must pass on all nominations for Federal judges; yes, sir.

Senator GURNEY. Well, that was my understanding, too. But I thought maybe the inference was that somebody else had the right to name these justices here.

Professor MILLER. Well, I understand, Senator, if I may interpolate a bit, that there is a certain amount of senatorial courtesy insofar as the naming of Federal judges.

Senator GURNEY. That is right. As a matter of fact, they do the recommending for all of the others except the Supreme Court Justices. Professor MILLER. So, there is some sort of a sharing of power here,

I suspect.

Senator GURNEY. But there is no one that has the right to name them, except the President.

On page 3

Professor MILLER. Page 3 of what, sir?

Senator GURNEY. Of your testimony. There is this third point that this is not an area involving congressional silence. "Congress has spoken," and I would like for you to comment on that "Congress has spoken" business, because I think that has a whole lot to do with the constitutionality of this Executive order, and I, of course, refer back to the debate in the Senate on two occasions, one when the appropriations bill was first on the floor and when the amendment was offered to prohibit the appropriations to be used for the carrying out of these new activities. And then later, of course, when the report came back from conference, the argument was had at that time on this very subject, and I would ask you: Is there any precedent or authority for ratification by Congress of Executive orders of the President through the appropriation process?

Professor MILLER. The Executive order which excluded the Japanese-Americans on the west coast: legislation finally followed that. Now, I do not know, I cannot remember the details on how it did get to the Congress. I do not know of any procedure whereby proposed Executive orders are submitted to the Congress for approval; in fact, I would seriously doubt whether they should. I would have serious doubt whether Executive orders should be submitted to the Congress for its approval.

Senator GURNEY. Well, of course, that was not my question.

My question was: Is there a line of authority that Congress ratifies an Executive order by appropriation acts following the Executive order?

Professor MILLER. NO.

Senator GURNEY. There is no line of authority?

Professor MILLER. There is no case to my knowledge.

Senator GURNEY. Well, let me cite to you the case of IsbrandtsenMoller Company v. the United States in 300 U.S. 139. In this case, an Executive order transferred a shipping board which was an independent agency to the Commerce Department, and the plaintiff later disputed an order by the Secretary of Commerce saying that this could not be done by Executive order, that it was illegal and, therefore, the order of the Secretary of Commerce was invalid. And the holding of the case was specifically that Congress had ratified Presidential action in the Executive order by a later appropriations act. Are you familiar with that case?

Professor MILLER. I know the case by name. I have not read it recently.

Senator GURNEY. Well, I commend you to read it, because I think it is an express authority of a ratification.

Professor MILLER. Senator, if I may make one comment, that is one case. Do you have others?

Senator GURNEY. Yes. Here is another. Are you indicating that a decision by the Supreme Court of the United States ought to have several cases in order to back up a holding?

Professor MILLER. You used the term "line of authority," Senator, not "item."

Senator GURNEY. Well, is this an authority, in my proposition, providing I stated the case?

Professor MILLER. I assume you stated the case correctly, Senator. I would assume that.

Senator GURNEY. But I do want you to read it so that you can confirm the assumption that I gave it to you correctly.

Professor MILLER. I have no doubt about it, Senator. Certainly it could be used as an authority. Whether it is a compelling or persuasive authority depends on a number of other factors.

Senator GURNEY. Here is another case that might make the thing more persuasive. It is Fleming v. Mohawk Company, 331 U.S. 111. Here, the President, by Executive order, consolidated the OPA and three other agencies into the Office of Temporary Control, and his authority, of course, was challenged in this case, and the Court held against that, that such action was ratified by subsequent appropriation acts of Congress.

Professor MILLER. That is a wartime case; is it not, Senator?
Senator GURNEY. Well, I do not know whether it is or not.
Professor MILLER. You said "OPA." I assume it is.

Senator GURNEY. I think some of this may be somewhat earlier. Professor MILLER. I doubt very much, Senator, if one can draw on any wartime cases as a basis for this.

Senator GURNEY. Why is that?

Professor MILLER. Because a wartime is an emergency condition and situation, and a war is such that the courts, the executive, and the legislature work together to win a war. I do not believe that any wartime case should be considered to be a precedent for present-day actions. If it is a wartime case, if it is an OPA case, then it must be a wartime

case.

Senator GURNEY. Well, I did check with one of my staff people. This Executive order occurred after the war was finished, which is a point of interest, although it may have had to do with wartime powers.

But I take it that your testimony is that no line of authority involving Executive orders during wartime is any precendent for any other Executive orders; is that your statement?

Professor MILLER. I would certainly hesitate to say this-that because the Supreme Court upheld the forcible exclusion of 125 Japanese-Americans from the west coast, the Congress and the President acting together can pass legislation or that an Executive order could be executed that would take 100,000 people out of Washington and put them out in the middle of Utah, or some place like that. Now, you can read those prior cases in that connection if you want to. I would hate to use a wartime case.

Senator GURNEY. What did this Japanese case decide?

Are you saying that it held that a wartime Executive order does not apply to any other; is that it? That was the question I asked.

Professor MILLER. No, it did not; of course, not. But I would say this again, I get back to the question: If you wish to use, as a lawyer is entitled to use, any court decision. I would be extremely careful with any case decided in connection with an all-out emergency such as the Second World War.

Senator ERVIN. I would go a little further, and I would say, in that case, all three branches of the Federal Government raped the Constitution.

Professor MILLER. Yes, sir. And the fact that the Supreme Court upheld it does not impress me very much.

Senator ERVIN. In other words, I do not pay humble obeyance to all of the judicial aberrations, myself.

Senator GURNEY. Well, if I may get the answer to the question, which, of course, I did not get

Professor MILLER. Yes, you have.

Senator GURNEY. Is it not your assertion, as a professor of law, that the authority of the Supreme Court deciding an Executive order power in wartime has no carryover to peacetime?

Professor MILLER. Well, you are stating a very broad proposition. Senator GURNEY. I am restating what I thought you said.

Professor MILLER. I said this I said I would be extremely careful in arguing a present-day case before the court and citing a wartime case as authority. That is what I said.

Senator GURNEY. But that is not what I asked.

Professor MILLER. No; it is a precedent.

Senator GURNEY. Yes.

Professor MILLER. If you wish to make it so; yes. If the Court wishes to make it so; yes.

Senator GURNEY. Well, fine. That is all we are trying to find out. Thank you.

Professor MILLER. Then, I will put it again, "Yes."

Senator GURNEY. Now, if we can get-Go ahead.

Professor MILLER. Yes, sir.
Senator GURNEY. Go ahead.

Professor MILLER. I did not

Senator GURNEY. I thought you were going to put it again.

Professor MILLER. I did put it again. I said "Yes," a third time. Senator GURNEY. Well, now, then, if we can get back to this particular Executive order, now that we have established some line of authority here, hopefully, that a ratification can be made by Congress.

In the debate in the Senate when the appropriation bill was first considered and later when a conference report came back with the money still included in it, even though the Senate had passed an amendment striking it out, again the argument was that if we ratified this conference report we would be putting our stamp of authority upon this Executive order. Here, for example, is what one Senator said:

In addition, I do not feel that the Congress should be placed in the position of approving an appropriation measure when that approval would also be interpreted as a sanction for the new administrative function.

That, essentially, covers the argument. Others had other things to say, and the majority leader, who was pressing for a vote, had this to say: