After repeated requests to the White House, on February 25, 1971, the White House staff furnished the following statement on the legal authority of the President to terminate the Cross-Florida Barge Canal without congressional approval, reciting that this was the opinion of the Department of Justice.

An appropriation of funds for a particular project or activity is ordinarily regarded as permissive in nature and not as equivalent to a direction that such projects or activity be undertaken or that funds be spent. See 42 Ops. A. G. No. 32, p. 4 (1967); McKay v. Central Electric Power Cooperative, 233 F. 2d 623, 625 (C.A.D.C. 1955).

The only court decision cited to uphold the quoted conclusion was McKay v. Central Electric Power Cooperative (an REA cooperative). This case does not in any way support the President's action on the canal; because, unlike the canal which was specifically authorized and specifically appropriated for, the REA contracts in the McKay case depended solely for any specific performance on such contracts upon the language of a general appropriations law for electrical transmission facilities, while the law made no reference whatsoever to particular projects or particular contracts. In fact, the legislative history of the law in the electrical case indicated an intent to exclude the contracts sought to be performed; but this was not relied upon in the appellate decision, but only the fact that the legislation was silent on the specific project and the specific contracts involved. The court observed that the claimants might, despite the court's ruling on specific performance of the contracts, sue the Government for breach of contract in another suit.

Clearly, the above cited case is not only no authority for the President's action on the canal matter; but it is in fact authority against the President having authority when the project involved, such as the canal, is both authorized and appropriated for by specific provision of law. This would be true whether a suit is for specific performance or for breach of contract.

The only other authority relied upon by the administration for its position was the 1967 opinion of Attorney General Ramsey Clark upholding the power of the President to impound Federal-Aid Highway funds before they had been obligated by approval of a specific qualifying project. This impoundment was not to end any project but only to temporarily reduce the level or spending to curb inflation. No contractual obligations of the United States were involved in any way. Clearly that decision is not analogous in any way to the President's order to terminate completely a project duly and specifically authorized and funded by legally enacted law. The Attorney General said:

It is my conclusion that the Secretary has the power to defer the availability to the States of those funds authorized and apportioned for highway construction which have not, by the approval of a project, become the subject of a contractual obligation on the part of the Federal Government in favor of a State. Moreover, since the purpose of action here is not to reduce the total amount of the funds to be devoted to the Federal-Aid Highway Program 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 affirma

tive duty to expend the funds. Hukill v. United States, 16C. Cl. 562, 565 (1880); Campagna v. United States, 26 C. Cl. 316, 317 (1891); Lovett v. 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 2 years. After the 2 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 "30 musicians at $40, eight at $26, and 15 at $23 per month each, $9,000." After observing that Congress was confronted with paying musicians whose pay varied because of longevity, et cetera, 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 employee 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 to that degree.

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 date. In the opinion of Justice Madden in this case, the following statement was made:

It may well be that under our Constitution—and listen to this well because it is a stinging example 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 President 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 rely upon 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.

Of course, Congress had already decided. It decided when it passed the law. The authorizations and appropriations were made by law and the President has tried by himself to repeal that law, an unconstitutional effort.

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 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 Presi

dent's power to terminate the canal (which it obviously could not do in the face of the Constitution), only a few leading cases will not 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 McLean, 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 ex. rel. Stokes. (37 U.S. (12 Pet.) 524 (1838).) 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 pays the claims. The Supreme Court upheld a mandamus ordering the payment, holding that the President was not empowered 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, in a novel construction of the Constitution, and entirely inadmissable.

This is a decision of the U.S. Supreme Court.

To avert a nationwide 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 and Tube Co. v. Sawyer (343 U.S. 579 (1952)), 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.

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 also 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 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 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 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.

Mr. Justice Jacskon, concurring with the majority opinion, remarked on:

Poverty 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: Justice Jackson said:

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.