A-69783, JANUARY 14, 1936, 15 COMP. GEN. 603

A-69783, JANUARY 14, 1936, 15 COMP. GEN. 603

AGRICULTURAL ADJUSTMENT ACT - UNCONSTITUTIONALITY - AVAILABILITY OF APPROPRIATIONS THE UNEXPENDED BALANCE OF THE APPROPRIATION MADE BY THE AGRICULTURAL ADJUSTMENT ACT OF MAY 12, 1933, 48 STAT. 38, AS AMENDED, REMAINS AVAILABLE FOR USE TO THE EXTENT NECESSARY TO THE LAWFUL ACCOMPLISHMENT OF SUCH OF THE PURPOSES FOR WHICH MADE AS HAVE NO CONNECTION WITH OR RELATION TO THE PLAN TO REGULATE AND CONTROL AGRICULTURAL PRODUCTION HELD TO BE UNCONSTITUTIONAL BY THE SUPREME COURT OF THE UNITED STATES.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, JANUARY 14, 1936:

I HAVE YOUR LETTER OF JANUARY 11, 1936, AS FOLLOWS:

I HAVE THE HONOR TO REQUEST YOUR OPINION AS TO WHETHER FUNDS APPROPRIATED UNDER SECTION 12 (A) OF THE AGRICULTURAL ADJUSTMENT ACT OF MAY 12, 1933, ARE AVAILABLE FOR ADMINISTRATIVE AND OTHER EXPENSES TO CARRY OUT THOSE PROVISIONS OF THE ACT THAT ARE NOT AFFECTED BY THE DECISION OF THE SUPREME COURT IN THE CASE OF UNITED STATES V. BUTLER, DECIDED ON JANUARY 6, 1936.

IN THAT DECISION THE COURT IN EFFECT HELD THAT CONGRESS DID NOT HAVE THE POWER TO AUTHORIZE THE SECRETARY OF AGRICULTURE TO ENTER INTO CROP ADJUSTMENT CONTRACTS AND MAKE RENTAL AND BENEFIT PAYMENTS AND THEREBY REGULATE THE PRODUCTION OF AGRICULTURAL COMMODITIES WITHIN THE STATES. THAT, THE COURT HELD, WAS A POWER RESERVED TO THE STATES. SINCE CONGRESS DID NOT HAVE AUTHORITY TO AUTHORIZE CONTRACTS OF THAT TYPE, IT FOLLOWED, SAID THE COURT, THAT TAXES LAID FOR THE PURPOSE OF FINANCING ADJUSTMENT CONTRACTS WERE UNLAWFUL. THE COURT LIMITED ITS CONSIDERATION TO THE QUESTIONS OF RENTAL AND BENEFIT PAYMENTS AND PROCESSING TAXES LEVIED TO FINANCE SUCH CONTRACTS. THERE WAS NOT BEFORE THE COURT, NOR DID THE COURT CONSIDER, THE QUESTION OF MARKETING AGREEMENTS, LICENSES OR ORDERS. DID NOT CONSIDER THE QUESTION OF THE REMOVAL OF SURPLUS AGRICULTURAL COMMODITIES OR ANY OTHER PROVISIONS OF THE ACT EXCEPT ADJUSTMENT CONTRACTS AND PROCESSING TAXES.

THE DEPARTMENT OF AGRICULTURE, THEREFORE, FEELS THAT IT IS NOT ONLY AUTHORIZED BUT REQUIRED TO CARRY OUT THE PROVISIONS OF THE ACT THAT ARE NOT INTERDICTED BY THE DECISION OF THE COURT, AND THAT, IN ORDER TO ACCOMPLISH THIS PURPOSE, THE BALANCE OF THE SUM OF $100,000,000 APPROPRIATED UNDER THE ACT OF MAY 12, 1933, IS AVAILABLE FOR SUCH PURPOSE.

IN ORDER THAT THERE MAY BE NO CESSATION OF THE OPERATIONS OF THIS DEPARTMENT IN CARRYING OUT THE MATTERS RELATING TO MARKETING AGREEMENTS, LICENSES, ORDERS, REMOVAL OF SURPLUSES AND SO FORTH, IT WILL BE APPRECIATED IF YOU CAN GIVE THE MATTER YOUR IMMEDIATE ATTENTION.

IN UNITED STATES V. BUTLER, DECIDED JANUARY 6, 1936, THE SUPREME COURT OF THE UNITED STATES HAD UNDER CONSIDERATION THE MATTER OF THE LEGALITY OF THE PROCESSING TAX AND DETERMINED ITS EXACTION TO BE IN CONTRAVENTION OF THE CONSTITUTION BECAUSE THE USE FOR WHICH LEVIED AND APPROPRIATED UNDER PROVISIONS OF THE AGRICULTURAL ADJUSTMENT ACT, 48 STAT. 31, INVOLVES A "PLAN TO REGULATE AND CONTROL AGRICULTURAL PRODUCTION," A MATTER "BEYOND THE POWERS DELEGATED TO THE FEDERAL VERNMENT.' WHILE THE DECISION LEAVES NO ROOM FOR DOUBT THAT THE PROCESSING TAX IS NO LONGER FOR COLLECTION, OR THAT ALL PROVISIONS OF THE AGRICULTURAL ADJUSTMENT ACT DESIGNED FOR REGULATION OR CONTROL OF AGRICULTURAL PRODUCTION ARE NOW INOPERATIVE, IT DOES NOT FOLLOW THAT PROVISIONS OF SAID ACT NOT CONSIDERED BY THE COURT AND IN NO MANNER A PART OF THE "PLAN TO REGULATE AND CONTROL AGRICULTURAL PRODUCTION" HAVE NECESSARILY FALLEN AND SO AS TO RENDER UNAVAILABLE FOR THEIR CARRYING OUT APPROPRIATIONS HERETOFORE MADE FROM THE GENERAL FUND OF THE TREASURY AND OTHERWISE AVAILABLE FOR SUCH USES. IN CONNECTION WITH ALL SUCH USES IT MUST APPEAR CLEAR, HOWEVER, IN VIEW OF THE BROAD LANGUAGE EMPLOYED BY THE COURT IN CONDEMNING SAID PLAN FOR REGULATION AND CONTROL OF AGRICULTURAL PRODUCTION AS INVADING THE "RESERVED RIGHTS OF THE STATES" AND THUS UNCONSTITUTIONAL, THAT EXPENDITURES MADE FROM SUCH APPROPRIATIONS IN NO MANNER FURTHER OR IN ANY WISE PARTAKE OF SUCH PLAN.

SECTION 12 (A) OF THE ACT AS AMENDED, TO THE EXTENT HERE MATERIAL, PROVIDES:

(A) THERE IS HEREBY APPROPRIATED, OUT OF ANY MONEY IN THE TREASURY NOT OTHERWISE APPROPRIATED, THE SUM OF $100,000,000 TO BE AVAILABLE TO THE SECRETARY OF AGRICULTURE FOR ADMINISTRATIVE EXPENSES UNDER THIS TITLE AND FOR PAYMENTS AUTHORIZED TO BE MADE UNDER SECTION 8. SUCH SUM SHALL REMAIN AVAILABLE UNTIL EXPENDED.

WHILE THE UNEXPENDED BALANCE OF SAID APPROPRIATION REMAINS AVAILABLE FOR USE TO THE EXTENT NECESSARY TO THE LAWFUL ACCOMPLISHMENT OF SUCH OF THE PURPOSES FOR WHICH MADE AS HAVE NO CONNECTION WITH OR RELATION TO THE PLAN TO REGULATE AND CONTROL AGRICULTURAL PRODUCTION, OR THE ASSESSMENT OR COLLECTION OF PROCESSING TAXES, SAID BALANCE IS NOT AVAILABLE FOR ANY OTHER PURPOSE.

AS YOUR LETTER DOES NOT DISCLOSE SUFFICIENT FACTS WITH RESPECT TO "THE MATTERS RELATING TO MARKETING AGREEMENTS, LICENSES, ORDERS, REMOVAL OF SURPLUSES, AND SO FORTH," REFERRED TO IN THE CONCLUDING PARAGRAPH OF YOUR LETTER TO ENABLE A DETERMINATION AS TO WHICH, IF ANY, OF SUCH MATTERS HAVE NO CONNECTION WITH OR RELATION TO THE REGULATION OR CONTROL OF AGRICULTURAL PRODUCTION, I CANNOT ADVISE YOU MORE SPECIFICALLY AT THIS TIME. HOWEVER, IF IT IS BELIEVED THAT ALL OR CERTAIN OF SAID MATTERS ARE NOW FOR CARRYING ON, AND LAWFULLY MAY BE CARRIED ON IN VIEW OF THE DECISION OF THE SUPREME COURT, SUPRA, IT IS SUGGESTED THAT A DETAILED STATEMENT THEREOF, INCLUDING THE METHODS OF OPERATION, ETC., AND THE REASONS WHY IT IS BELIEVED THE DECISION OF THE COURT DOES NOT PROHIBIT SUCH CARRYING ON, BE SUBMITTED FOR DECISION AS TO THE LEGAL AVAILABILITY OF SUCH APPROPRIATION FOR USES ACCORDINGLY.