                 Constitutionality of an Appropriations Bill
                 Denying Funds for Certain Civil Litigation
Legislation directing that no funds be expended in the preparation or prosecution of a civil lawsuit by
  the United States against a state public utility district regarding riparian rights in a river owned by
  the federal government is not subject to serious constitutional objection.

                                                                                         July 30, 1952

                 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

   A question has arisen concerning the validity of section 208(d) of the act mak-
ing appropriations for the Departments of State, Justice, Commerce, and the
Judiciary for the fiscal year ending June 30, 1953, approved by the President on
July 10, 1952. Pub. L. No. 82-495, 66 Stat. 549, 560.
   Section 208(d) provides:

        None of the funds appropriated by this title may be used in the prep-
        aration or prosecution of the suit in the United States District Court
        for the Southern District of California, Southern Division, by the
        United States of America against Fallbrook Public Utility District, a
        public service corporation of the State of California, and others.

   The case referred to in the subsection is a pending civil suit instituted by the
government on January 25, 1951, in the United States District Court for the
Southern District of California, Southern Division. The suit, which is in a pre-trial
stage, seeks a judicial determination of the government’s valuable riparian rights
in the Santa Margarita River in California, which runs for approximately twenty-
one miles through a 135,000 acre tract of land acquired by the government by
purchase during the war and presently used as a naval establishment.
   The question would seem to turn on whether or not section 208(d) represents a
constitutional exercise of the legislative power of the Congress or constitutes an
unwarranted encroachment on powers committed to the Judicial and Executive
Branches of the government by the Constitution.
   In United States v. California, the Supreme Court succinctly stated that the
prosecution of claims on behalf of the United States is within the area of legisla-
tive control:

        An Act passed by Congress and signed by the President could, of
        course, limit the power previously granted the Attorney General to
        prosecute claims for the Government. For Article IV, § 3, Cl. 2 of
        the Constitution vests in Congress “Power to dispose of and make all
        needful Rules and Regulations respecting the Territory or other
        Property belonging to the United States . . . .” We have said that the




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       constitutional power of Congress in this respect is without limitation.
       United States v. San Francisco, 310 U.S. 16, 29–30 (1940). Thus
       neither the courts nor the executive agencies could proceed contrary
       to an Act of Congress in this congressional area of national power.

332 U.S. 19, 27 (1947). A similar view was expressed by the district court in the
pending litigation. United States v. Fallbrook Pub. Util. Dist., 101 F. Supp. 298,
301, 307 (S.D. Cal. 1951).
    It might be urged, however, that, granting the Congress’s plenary power to
dispose of federal property, it has not clearly and unequivocally done so here.
Rather, it might be said that the Congress has merely rendered the rights of the
United States temporarily unenforceable in the courts by denying to the Executive
the funds necessary to the discharge of its constitutional functions in the protection
and vindication of such rights in the courts of the United States. In this view it
might be argued that the Congress’s action ignores the constitutional separation of
powers and vitiates by indirection the proper discharge of the constitutional duties
of the Judiciary and the Executive. However, the force of this argument would
seem dissipated by the Congress’s admitted legislative control over the property
involved. If the Congress had sought to do in an appropriation measure what it
would have had no constitutional power to do directly, a wholly different situation
would be presented. Cf. Constitutionality of Proposed Legislation Affecting Tax
Refunds, 37 Op. Att’y Gen. 56 (1933) (Mitchell, A.G.); Constitutionality of Reso-
lution Establishing United States New York World’s Fair Commission, 39 Op.
Att’y Gen. 61 (1937) (Cummings, A.G.).
     However, in denying the use of the appropriated funds for the preparation or
prosecution of the Fallbrook suit, it cannot be doubted that the Congress intended
to waive, for the time being at least, the rights asserted by the government in that
suit. Since it seems clear, as the Supreme Court has stated in the California case,
that the Congress could do that by direct legislation, there would scarcely appear
to be a constitutional bar to doing it through a prohibition contained in an appro-
priation act. Cf. United States v. Dickerson, 310 U.S. 554 (1940).
    It would seem, therefore, that section 208(d) is not subject to serious constitu-
tional objection.

                                               JOSEPH C. DUGGAN
                                             Assistant Attorney General
                                           Executive Adjudications Division




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