was going to be unduly burdensome on the Congress if meantime every small impoundment under that had to come before the Congress under action and it would either under the Ervin bill or your bill, as I understand it, before even such an impoundment could be made. The reasons for the Anti-Deficiency Acts were really Congress imposing on the President and the Department heads duties and responsibilities, to effect economies and prudent regard for public funds after there had been a situational change not contemplated by the legislative

process.

My concern is what kind of burden this is going to place on the Congress if every item like this has to come before the Congress.

My CONTE. That is a good point. It is an excellent point. I think we could work out those details. I think, whether the Ervin bill or the Conte bill, in generalities we can work out the details. I think it could be worked out right now. When we have a transfer of funds in appropriations we merely send a letter up to the chairman and the chairman calls in the ranking member of the committee and we go over the transfer of funds. Say the Department of Transportation wants to take some money out of UMTA and put it into FAA and they merely send a letter up and all we require is the OK of the chairman and the ranking committee. Maybe we could delegate this power to the appropriation subcommittee dealing with that particular budget.

Senator CHILES. Possibly GAO could screen these impoundments. Mr. CONTE. GAO and both the House and Senate and they couldn't take very much time.

Look at the time we are taking now. The President impounded funds for REAP and the Agriculture Committee is over there holding hearings in the House day after day after day and maybe weeks over one impoundment.

Senator CHILES. I just wanted to get for the committee the thrust of your bill and not necessarily the thrust that the Congress would have to make an affirmative move on every impoundment no matter how small and whether for temporary measure or deficiency.

Mr. CONTE. This could be delegated to a subcommittee of the Appropriations Committee or whomever the committee may choose.

Senator CHILES. Thank you, Congressman. We appreciate your taking the time to come over here and testify.

Mr. CONTE. Thank you, Mr. Chairman.

Senator CHILES. Our next witness will be Hon. Charles Bennett, Congressman from the State of Florida who has long been very interested in the field of impoundment and has long been a strong advocate for Congress assuming its constitutional roles.

Congressman, both of your Florida colleagues are delighted to have you here before us today.

STATEMENT OF HON. CHARLES E. BENNETT, A REPRESENTATIVE IN CONGRESS FROM THE THIRD CONGRESSIONAL DISTRICT OF THE STATE OF FLORIDA

Mr. BENNETT. It was very kind for you to allow me to be here. I come with deep feelings that something should be done in this field. As you may remember I testified before this committee on this subject in March 1971, long before impoundment of funds became an

important national issue it is today. This is an important subject because it is timely and goes to the roots of our form of government; and I congratulate the Chairman and the committee for considering

it.

A learned lawyer, applying for admission to the New York bar in December 1963 wrote:

The principles underlying the government of the United States are decentralization of power, separation of power and maintaining a balance between freedom and order.

Above all else, the framers of the Constitution were fearful of the concentration of power in either individuals or government. The genius of their solution in this respect is that they were able to maintain a very definite but delicate balance between the federal government and state government, on the one hand, and between the executive, legislative, and judicial branches of the federal government, on the other hand.

This same learned lawyer, our present President, who incidentally, was admitted to the Bar of the State of New York and was later elected President of the United States in the 1968 elections and reelected in 1972, recently completely abrogated his thesis in the 1963 paper with an edict not unlike a Catherine de Medici decision of the 16th century. He destroyed the "delicate balance between the Federal Government and the State government" by cavalierly breaking a contract between the U.S. Government and the State of Florida, and he also dictatorially repealed an authorized law of Congress by "permanently" halting the Cross-Florida Barge Canal. He did not even give notice to the public or to Congress that he was going to do it, much less allow any objective presentation of views on the subject both legal or factual. The 18th century French writer Montesquieu wrote in "The Spirit of the Laws on the Constitution of England":

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Later, Justice Brandeis said:

Doctrine of separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power.

In the recent case of the Cross-Florida Barge Canal, the President both promoted inefficiency in government by stopping a vital and worthwhile national project, one-third complete, and creating great uncertainty and loss of taxpayers' funds and predictable damage to the environment, but he also acted in an unconstitutional and arbitrary

manner.

My testimony here deals with the President's edict to terminate the Cross-Florida Barge Canal and shows that he was misled on the law backing his decision, just as he was misled by his environmental advisers, to the detriment of the 7 million citizens of Florida and the 23 million annual visitors to our State and the economy and national security of America.

The canal case is a current classic in the "impoundment of funds" field and perhaps the worst example of Presidential disregard of the U.S. Constitution in history.

The responsibility of the President of the United States is as stated in section 3 of article 2 of the Constitution to "take care that

the laws be faithfully executed." He has the power of veto in the process of enactment or repeal of law-section 7 of article 1-but after a bill is signed into law and appropriations are made he cannot repeal the law himself without congressional repealing; and the President must execute or carry out the duly enacted law. He can, of course, recommend that the law be repealed. No principle of American constitutional Government is more fundamental than this to our heritage or more clearly stated in our Constitution.

The keystone of our Government is its division into the three separate branches: Legislative, executive, and judicial. One of our Founding Fathers, President James Madison, expressed it well in the Federalist Papers-No. 47-when he wrote:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. So in defining the power of the new President, our forefathers wrote into our Constitution: "He shall take care that the laws be faithfully executed."

The Cross-Florida Barge Canal was specifically authorized in 1942 by Public Law 77-675. Although its value to the defense needs of our country were recognized in its authorization, the shortage of manpower for its construction during World War II postponed the appropriations needed for its commencement. But the appropriations have been made continuously ever since 1964 and now totals $60 million; and the project is now more than a third complete. This is not all the money being spent because about $12 million or thereabouts has been spent by the State of Florida as well.

In 1970 in the House report on the appropriations bill the following statement was made:

The committee has included in the bill the $6,000,000 including carryover funds, proposed in the budget to continue construction of the project *** the committee does not feel that it would be warranted, in the light of the current facts available, in delaying construction of the project which was started in 1964 and is now about 30 percent complete ***. Considering, therefore, the status of the construction and the need for the project, the committee recommends that the construction work continue and that every effort continue to be made to minimize any adverse effects on the environment, ecology, and fish and wildlife in the area.

It is not proposed to discuss here the merits of the canal; but only the legality of a Presidential edict to terminate the project. The merits which amply justify the project, will be discussed in another presentation. However, the facts are that about $50 million have been spent on this canal (1) which the Joint Chiefs of Staff supported to provide "an additional and shorter line of communication between the gulf coast and the east coast" that would "reduce exposure of shipping to submarine attack" and (2) which several independent studies found to be justified for economic and job producing reasons, and (3) which many geologists and ecologists, and all congressional public hearings, open to all points of view, gave a clean bill of health to on ecological grounds.

On January 19, 1971, the President issued a press release in which he said, "I am today ordering a halt to further construction of the Cross-Florida Barge Canal," which has been construed to be a termination by employees of the Civil Service Commission.

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