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

2. When the President acts in absence of either a congressional grant or denial of authority, he can only reply upon his own independent 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.

I remind you this is the second case in which the President acted in absence of congressional denial or absence of authority.

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:

President Wilson said:

The Congress and the Executive should function within their respective spheres... The Congress has the power and the right to grant or deny any 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 President's Committee on Administrative Management 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 thereafter 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 the 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 constitutes direction to pay a sum 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 authority for the impounding or appropriated funds, except for purposes of economy and efficiency in executing the purposes for which the appropriation is made shows he does not have that power.

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? In the matter of the Cross-Florida Barge Canal 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 canalmany millions of dollars. 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.

I believe the courts will uphold the Constitution and prohibit the President from unilaterally attempting to repeal the law. But if the courts do not or there is unreasonable delay, Congress should attempt to find a way to prevent such abuse of power by the Executive.

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 reasoning of the President's action overlooked the fact that the Oklawaha can be inexpensively bypassed and that no wildlife preservation whatsoever 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.

90-538 O-73 - 11