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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. (&paulding v. Douglas Aircraft Co., 60 F. Supp. 985, 988 (S.D. Cal. 1945), atrd, 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. Atty. 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.

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The most recent action in regard to the canal relates to $150,000 the Congress appropriated in the current fiscal year for an environmental impact study of the canal. This money, too, has been impounded by the President which I feel violated the law in two areas: first in impoundment and second by not providing an environmental impact statement on the canal as required by law, to be done by the President even before he recommends that a project be ended, but in this instance no such study was made. The environmental laws we have passed outline a procedure of first having an environmental impact study, which was not done in the case of the canal, and then the laws say the executive is to make a recommendation to Congress on such a study for appropriate congressional action. No such recommendation has yet been made in the case of the canal, only unilateral action by the President based on no ecological study or impact statement at all.

There have been ecological studies of the canal but they have all been favorable to the canal. The only one since the action by the President was one which has nothing to do with ending the canal but says if the canal is ended what shall be done about the lands involved.

I appreciate this opportunity to come before you today. There has been one recent case, a Missouri case which I put in the file here and it holds very strongly for the position that I have taken. This is State Highway Commission of Missouri v. John Volpe, 347, Federal, Supp. 950, August 7, 1972, a decision which seems to me is in strong support for the position now taken here in regard to the President's power.

I apologize to you for taking so much time, but I did try to brief this as well as I could. I don't have any lawyers to help me in my office, but I did the best I could to get the law to you.

Senator CHILES Thank you, Congressman Bennett. .

I wonder if you had had an opportunity to look at bill S. 373 by Senator Ervin and some 50-odd cosponsors in the Senate?

Mr. BENNETT. I have joined with this, but really the canal is a much stronger case because it is authorized, funded repeatedly in the law specifically. The study and the trust of that other legislation goes further than is necessary to go in regard to the canal, but my memory is I am cosponsor in the House Act.

Senator CHILES. You mentioned in your testimony about the interpretation in many instances about appropriations bills to be more specific and more direct in their language?

Mr. BENNETT. Well, in view of the action of the President, I think it would be wise to do that. I think we should go away from the euphemistic statement of authorization and go to a directive statement which is mandatory by its very language, but I must say there is no law to sustain the position that authorizing a project is now an order to the President to do it. There is no law whatsoever that sustains the position the President can rely on mere authorization as an excuse for not doing it.

Senator CHILES. Senator Muskie, any question?

Senator MUSKIE. No; I don't have any questions. I want to excuse myself for not being here.

I want to compliment the Congressman for his statement.
Mr. BENNETT. Thank you.
Thank you for letting me be here.

Mr. EDMISTEN. We are very interested in the suit filed by the State of Florida. Would it be possible for you to submit to us the pleadings of the State of Florida and available court documents in that case ? Mr. BENNETT. I see no reason why I couldn't. I guess we could get the file sent up here and have it Xeroxed.

Senator CHILES. I think the committee is just interested in the complaint and impoundment aspects. Mr. BENNETT. I will be glad to furnish it to you." Thank you very much. Senator CHILES. Thank you.

Our next witness will be Senator Muskie. We are delighted to have you.

The Senator is a member of this committee and as one who has had such a long and outstanding standing in this arena in trying to call to the attention of the Senate and Congress, as well as the Nation, the problems that we are involving ourselves in and the dilemma we are involving ourselves in. We went down this trail and we are delighted to have your enlightenment as to how we get out of the briar patch now.

STATEMENT OF HON. EDMUND S. MUSKIE, A U.S. SENATOR FROM

THE STATE OF MAINE

Senator MUSKIE. Thank you very much, Mr. Chairman.

I am not sure that I can suggest any themes or touch any notes that haven't been already touched, but neverthless I do have a special perspective on this whole problem, so I presume to use the time of the committee to offer them. I hope they are useful.

I listened yesterday to a great deal of the testimony and was particularly impressed with that of Mr. Nader and Mr. Staats. I think both of them have offered suggestions to the committee which would be very useful as we try to shape policy and legislation to deal with the problem.

Now if I may turn to my own prepared testimony, the question before this committee, Mr. Chairman is older than our Republic. In America it goes back at least to 1754 when the Governor of the thenProvince of Pennsylvania referred to carry out a scheme approved by the assembly to raise funds for defense in the French and Indian War. Arguing the case for the legislators was Benjamin Franklin, the first of many noted Americans who have worked to clarify this disputed area between the executive and legislative branches of government.

More recently, Mr. Chairman, Associate Supreme Court Justice William Rehnquist, writing as Assistant Attorney General, found it “extremely difficult to formulate a constitutional theory to justify a refusal by the President to comply with a congressional directive to spend. "It may be argued,” he said, "that the spending of money is inherently an executive function, but the execution of any law is, by definition, an executive function * * *

"It seems an anomalous proposition,” Mr. Rehnquist concluded, that because the executive branch is bound to execute the laws, it is free to decline to execute them."

* See p. 912.

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