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in efficiency of government and when he talked about not expending money, he meant not expending money unnecessarily. In the context of the full statement, he is not saying, you do not expend moneyrather, you do not withhold money—because as a matter of policy, you disagree with it. He says only that you do not have to spend all the money appropriated if the President, by good management, can accomplish the same ends with less money. Is that not really what he says?
Mr. WEINBERGER. I would not really think so, in view of his later action in which he did withhold funds for the reason that he did disagree with the object of the appropriation when he directed the Secretary of Defense not to spend money and to place in reserves the money appropriated for a 70-group Air Force.
Senator MATHIAS. Well, of course, he had a different
Mr. WEINBERGER. I am not the least interested in defending some action of Senator Truman many years ago or President Truman many years ago. What I wanted to point out was that there are many bases and much general agreement for the basic proposition that in the carrying out of the executive function, the President has to have and has the ability to impound or reserve from time to time some of the funds that are otherwise available for spending.
Senator MATHIAS. What interests me is that I do not think it is a good idea to quote Senator Truman as a witness for President Truman.
Mr. WEINBERGER. We quoted both. We quoted Senator Truman on page 3 and President Truman sometime later on page 6.
Senator MATHIAS. If it is probative at all, it is worth having in full. Truman went on to say:
We need more effective management to accomplish economies in government. The machinery of the Bureau of the Budget and the establishment of reserves has been available from 1921. From a practical standpoint, this is not the time to abandon existing procedure for establishing economies and savings to set up a new scheme.
Mr. WEINBERGER. I do not disagree with that at all. That is one of the bases on which we impound from time to time, and that is one of the requirements of the Anti-deficiency Act, that we do it for that purpose.
Senator MATHIAS. That is right, and Truman was relying just on that act and just on the restrictions of that act.
Now, again, in referring to the House Report 1797, that was a report on the Omnibus Appropriations Act of 1951, which replaced the Anti-deficiency Act of 1906 and which is, of course, the current basis on which the Executive would act today if it wishes to reserve funds. And it would seem that the only provision open to debate is the authority of the President to impound upon the findings of subsequent developments.
Now, you quoted, I think, a relevant section of the report. But I think it also makes it clear that the Executive has no policy determination as to what established programs should be impounded. It speaks in terms of economy within the stated objective, and it speaks in terms of keeping the program intact. And it talks about all necessary service with the smallest amount possible within a ceiling figure fixed by Congress.
Do you not feel this is relevant to the question of authority over policy? · Mr. WEINBERGER. I think one of the factors to be considered in whether or not a given appropriation should or should not be spent is whether economies can be achieved or whether conditions have changed, and the other items listed in the Anti-deficiency Act. But I certainly do not feel that the Anti-deficiency Act is the only basis upon which the President has the authority to manage the expenditure of funds.
Senator MATHIAS. Do you feel that the act itself does confer on the Executive any authority to decide which among several programs ought to be impounded in whole or in part ?
Mr. WEINBERGER. Oh, I think that is absolutely inevitable from the reading of it. Yes, I do feel that way. There is nothing in the act which tells the President that he cannot do that or that simply directs him to pick and choose. It simply says that he does have, as we read it, that authority.
Senator MATHIAS. And you would feel that this is the basis of advice that you would give the President today? Say you have six programs of equal importance that the President might as a policy matter choose to exercise the right to impound. What would be the basis of determination? How would he choose ?
Mr. WEINBERGER. It would all depend upon the requirements of the moment and what was the need for withholding, what was the total amount to be withheld, what programs were in such a stage of administration that they could best withstand at that particular point a reservation of apportionment, this sort of thing. There is not any one single criterion that would necessarily determine which program should absorb it all, or whether we should try to pro rate it, or what should be the case. There are different conditions, there are different stages of execution of various programs and the Antideficiency Act again is simply one of the bases upon which the President might act. There are many others.
One of them, of course, as I mentioned in the statement, is the ceiling on expenditures. We may be required to withhold expenditures to stay within the congressionally imposed ceiling. We may be required to withhold or impound funds from time to time until the debt limit can be expanded. We were within a very close margin by Federal standards, something like $400 million, of brushing against the debt ceiling.
So there are a great many different factors which come up from time to time, and none of the acts that require this action of the President specify any particular program that he is to pick out or is not to choose. It is a matter of examination of the stage at which a particular program is, or whether, as you pointed out, it may be best to apportion the total amount of withhold that has to be made over several programs. Any one of a number of considerations will be present on a given day that may change the next day.
Senator MATHIAS. I think you have asserted for us a number of reasonable criteria upon which a President may act. But what we have not really pinned down is what this does to the role of Congress, what this does to the predictability of the carrying out of
congressional intent, what this does to the relationship between the Executive and Congress.
Mr. WEINBERGER. Senator, I think that this whole matter can be over-emphasized in an undesirable way. I think the important thing here is to realize that while this power, we think undoubtedly, exists and has always been exercised since we have any record, it is still exercised with a comparatively small percentage of the total budget and it is usually exercised as far as I know on a temporary basis. So that what we are talking about is a withhold that, while at any given afternoon at the close of business, it may appear to be too large in toto, is still a small percentage of the budget and the conditions that have giveni rise to it may well change within a week or a month. So that it is a constantly shifting thing. It is not a means by which President after President attempts to thwart the will of Congress or anything of the kind. It is a means by which the Presidents over the years have tried to carry out what may be said to be conflicting intentions of Congress, but a means by which these Presidents have attempted to insure that overall the will of Congress is maintained. And the mere fact that the instant that an appropriation is available for spending it is not spent that instant does not mean that the will of Congress is being thwarted or that there has been any change in the historic and proper relationships between the branches. It does mean that the President, during that period of time and for those few days or weeks or months, is carrying out his historic role of managing the executive branch and taking care that the laws are faithfully executed.
Senator GURNEY. Will the Senator yield at that point ?
As I pointed out initially, I think all of us are concerned with the analogy that might be drawn between domestic and foreign affairs. When I first came to the Congress as a result of the election of 1960, we were just beginning on the very unhappy phase of the buildup in Vietnam which got underway during the Kennedy administration, reached its peak during the Johnson administration, and during this time Congress was lagging behind in its appreciation of the implication of the executive powers until at least we were faced with certain accomplished facts. Now, I would only say I think it has to be a matter of some concern to Congress when you look at the status of amounts reserved or otherwise unexpended as of 30 days ago which is inexcess of $11 billion which, to my knowledge, would be a high water mark for impounded funds. And I think you can understand the concern which has occasioned these hearings.
Now, the Senator from Florida.
Senator GURNEY. Well, I was curious, in following the line of questioning of the acting chairman here with you, Mr. Weinberger. As I understand your testimony, it is that all presidents have always had this power and used it. Is that true? Do you know the history of the authority ?
Mr. WEINBERGER. Well, the figures that we have, Senator, go back to June of 1959, and I think they can be projected back before then. I would want to correct one statement that Senator Mathias made a moment ago, that it is a highwater mark.
Senator GURNEY. Let's get to the point that I am talking about. Mr. WEINBERGER. Oh, all right. I thought that was your point.
Senator GURNEY. What I am trying to find out from you is what is the history of this, anyway? The Republic has been functioning now for a long time, almost 200 years.
Mr. WEINBERGER. I will be glad to run the percentages.
Senator GURNEY. Can you give examples, for instance, where George Washington used this or Abraham Lincoln used it ?
Mr. WEINBERGER. I probably could. I am not prepared this morning. Senator GURNEY. Can you today? Mr. WEINBERGER. In June of 1959Senator GURNEY. Is that as far back as you are prepared to go? Mr. WEINBEGER. I can go back further but not today. In June of 1959, 71/2 percent of the outlays were withheld; in 1958, 7.1 percent, in 19
Senator GURNEY. My question is does it go back much further?
Mr. WEINBERGER. I am not aware of the actual date when it started, but I have in mind some historical examples which I would certainly like to get a better grounding in than I have now, because it is based now entirely on memory, that in the Civil War, Mr. Lincoln did not use some of the available appropriations. We can certainly run it to earth. But my memory and my understanding is that it goes back behind 1959. This morning I have figures that start at 1959.
Senator GURNEY. What did Abraham Lincoln withhold money for?
Mr. WEINBERGER. Various Civil War actions. I said I was not prepared in detail to cover them today.
Senator GURNEY. Would you do this for the subcommittee? Would you furnish every example that you can from the beginning of the Republic? Mr. WEINBERGER. That is what we plan to do, yes.
Senator GURNEY. I have a study from the Library of Congress that seems to indicate that all of this began with Franklin Roosevelt.
Mr. WEINBERGER. My understanding is that it began further back than that, but I will be glad to do the necessary research and get it for you.
Senator GURNEY. As a member of the subcommittee I would appreciate it.
(The information referred to follows:)
Instances in which the executive branch impounded funds prior to 1959 are cited in the attached articles by Professor Louis Fisher. For example, following the passage of the Budget and Accounting Act of 1921, the Harding Administration established formal procedures for impounding funds. The first executive branch action to impound funds, an action not discussed in these articles, appears to have been taken in 1803 by Thomas Jefferson. Jefferson's third annual message to Congress, dated October 17. 1803 states:
The sum of $50,000 appropriated by Congress for providing gunboats remains unexpended. The favorable and peaceful turn of affairs on the Mississippi rendered an immediate execution of that law unnecessary, and time was desirable in order that the institution of that branch of our force might begin on models the most approved by experience. The same issue of events dispensed with a resort to the appropriation of $1,500,000, contemplated for purposes which were effected by happier means.
[Reprinted from 15 Administrative Science Quarterly 361 (Sept. 1970)]
The Politics of Impounded Funds
This article explores the political factors ichich give rise to disputes over impounded funds: prevention of budget deficiencies; wartime diversion of human and material resources from domestic public works; presidential restraints on interservice rivalries over procurement; and fiscal measures to reduce inflationary pressures. The question of whether impoundment is justified or not requires close attention to specific cases and the complex interplay of politics, economics, and legislative procedures.
During the past three decades, presidents 1941 to 1913. Ramsey (1968) and Jackson have refused to release funds for such pro- (1967) discussed impoundment disputes of grams as the B-70 Lomber, air force groups, the postwar period, but neither attempted antimissile systems, flood control projects, a political evaluation. The attempt here is to highways, supercarriers, and small watershed trace the subject of impounded funds from projects. By impounding these funds, the 1921 to 1970, searching for historical and president provokas the charge that he is political factors that help explain why a obligated under the Constitution to execute president resorts to impoundment, and under the laws, not hold them in defiance; obli- ivhat conditions his will is likely to prevail gated to interpret appropriation bills not as over that of Congress. mere permission to spend but as a mandate
SOURCE OF AUTHORITY TO to spend as Congress directs. Otherwise, he is said to cncioach upon the spending prerog.
IMPOUND FUNDS atives of Congress, violate the doctrine of Part of the president's responsibility for separated powers, and assume a power of controlling the level of expenditures can be item veto neither sanctioned by the Consti- traced back to the vears following the Civil tution nor granted liv Congress.
War, when congressional control over the Several authors advance this line of argu- spending power declined as a result of frag. ment. Stassen (1969), Davis (1961), and mentation of committees. · The House Wars Goostrce (1962) invoked Supreme Court de- and Jeans Committee split apart in 1863, cisions to demonstrate that presidents lack retaining jurisdiction over revenue but surconstitutional authority to impound funds. rendering responsibilities over appropriaOn the other hand, Kranz (1962) produced tions and banking and currency to two newly legal evidence to show that there is both formed committees. Within a few vcars the statutory and constitutional support for the jurisdiction of the House Appropriations president's impounding of funds. Yet these Committee splintered, with autonomous Court decisions are less germane than the spending powers parcclcd out to separate political context within which the president committees. In the wake of legislative erdecides to impound funds (Fisher. 1969). travagances in the late 1500s, the president, As Miller (1965: 533) observed, the presi- not Congress, played the role of guardian of dent "can and may withhold expenditure of the public purse (Fisher, 1971). funds to the extent that the political milicu in which he operates permits him to do so." Antideliciency Acts Unfortunatcly, there is little in the literature At the turn of the century, outlavs for penon this political aspect. Williams (1955) sion bills, river and harbor projects, the wrote an excellent study on the interplav Spanish-American War, and the Panana between politics and impounded funds from Canal all converged to produce a series of