President considers the purpose unwise, wasteful, or inexpedient. He then no longer operates on the basis of legislative authority. On the contrary, he matches his will against that of Congress. As Representative George Mahon once remarked, "economy is one thing, and the abandonment of a policy and program of the Congress another thing."14

Despite protests from Congress, Presidents have regularly impounded funds to cancel or curtail programs ranging from flood control projects to B-70 bombers, anti-missile systems, and nuclearpowered vessels. Every Administration from Franklin Roosevelt's to Lyndon Johnson's has resorted to this method of control. When the first serious incident of impoundment occurs under the Nixon Administration, critics of presidential power will renew their asser→tion that appropriation bills are not mere authority or permission to spend but rather a mandate from Congress to spend as directed.

More specifically, these critics assert that numerous decisions of the Supreme Court demonstrate that Presidents lack constitutional authority to impound funds. This critique covers three areas: executive discretion over funds, inherent powers of the President, and the restraints on executive power implied by the doctrine of separation of powers. In examining these Court decisions, this article finds that they have scant bearing on the p actice of impoundment, and offer little promise of resolving the dispute on constitutional grounds.

Executive Discretion Over Funds

Prominent among the cases used to challenge the constitutionality of impoundments is Kendall v. United States ex rel. Stokes.15 The Postmaster General under President Jackson's administration refused to pay the claim of an individual who had contracted to carry the mails and sought compensation for his services. Congress directed the Postmaster to pay the amount, as did the Circuit Court of the District of Columbia. The Supreme Court held that the Postmaster could not refuse this payment which was authorized by law.

In the words of one study, Kendall "scouted the idea that the effect of the responsibility to see that the laws are faithfully executed is to create discretion in the President as to their execution." The decision has also been interpreted as recognizing congressional authority to order executive officials to make payments as directed by law.

Indeed, at first glance it appears that Kendall bears directly on the issue of impoundment. The Court, for instance, declares: "To con

14. 95 CONG. REC. 14922 (1949).

15. 37 U.S. (12 Pet.) 524 (1838).

16. Goostree, The Power of the President to Impound Appropriated Funds, 11 AM. U.L. Rev. 32, 37 (1962).

17. Ramsey, Impoundment by the Executive Department of Funds which Congress has Authorized It to Spend or Obligate 32 (Library of Congress Legislative Reference Service, May 10, 1968); Davis, Congressional Power to Require Defense Expenditures, 33 FORDHAM L. REV. 39, 47-48 (1964).

tend, that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible."'18 Also to the point, apparently, is the Court's conclusion that it is "an alarming doctrine, that congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the constitution. . . ."19

Taken from context, these sentences cast dark shadows on the practice of impounding funds. Yet the decision is only remotely relevant, since impoundment entails no claim for services performed, as did the situation in Kendall. Moreover, the Court was careful to circumscribe its jurisdiction to avoid colliding with a coequal branch. Payment of the claim was a "purely ministerial" act, in the same sense that "an entry in the minutes of a court, pursuant to an order of the court, is an official act."20 For such ministerial duties there could be no discretion.

The question of judicial intervention in an executive act, requiring discretion and judgment, was carefully distinguished. The Court explained that the mandamus to pay the amount did not seek "to direct or control the postmaster-general in the discharge of any official duty, partaking in any respect of an executive character; but to enforce the performance of a mere ministerial act, which neither he nor the President had any authority to deny or control."21

23

Two other cases relied upon to challenge the constitutionality of impoundments suffer from the same infirmity as Kendall. In United States v. Price, the Government sued to recover a sum of money, the payment of which was authorized by Congress. The statute was held controlling and the defendant therefore was "under no obligation to pay back what he [had] received." In United States v. Louisville,25 the Government again tried to recover a payment made pursuant to an act of Congress. The Court declared that the duties of the Treasury officials were limited "to the clerical functions of making payment," and no discretion could be exercised to reexamine the correctness of the claim.2 26 These cases, involving obligation of contracts or payments, bear little relation to impoundments, where neither obligation nor payment is in issue. In addition, both

18. 37 U.S. (12 Pet.) at 613.

19. Id. at 610.

20. Id. at 613.

21. Id. at 610.

22. See Ramsey, supra note 17, at 34; Davis, supra note 17, at 54 n.91. 23. 116 U.S. 43 (1885).

24. Id. at 45.

25. 169 U.S. 249 (1898). 26. Id. at 255.

cases involved ministerial or clerical functions rather than executive responsibilities which require discretion and judgment.

In cases where judgment is required, the Court has yielded to the decisions of the executive branch. In 1840, the decision of the Secretary of the Navy to withhold payment from a widow whose claim was based on a resolution by Congress was upheld by the Court.27 Had the Secretary mechanically followed the direction of Congress, treating the matter as a ministerial duty, the widow would have received two pensions: one from the specific resolution adopted on her behalf, and a second from a general pension bill. The Court held that "interference of the courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief. . . ."28 In Reeside v. Walker,29 the Court again distinguished between ministerial and executive actions. A mandamus is "only to compel the performance of some ministerial, as well as legal duty. . . . When the duty is not strictly ministerial, but involves discretion and judgment, like the general doings of a head of a department. . . no mandamus lies."30

The expenditure of appropriations is often more than a mere ministerial act, such as paying a claim or entering the minutes of a court. The President has budgetary responsibilities to effect economies and avoid deficiencies, as well as far-reaching responsibilities under the Employment Act of 1946 for conditions in the national economy. Presidential judgment that a Nike-Zeus anti-missile system contains too many technical weaknesses to justify deployment, that additional funds appropriated for the Air Force would strain the economy, or that production of B-70 bombers is unwarranted in view of existing missile capability is no mere ministerial act. Such decisions require discretion and judgment, thus severely limiting the appropriateness of judicial interference.

Congressional deference to executive discretion was evident in the 1962 dispute concerning the RS-70 bomber. The House Armed Services Committee "directed" the Secretary of the Air Force to spend not less than $491 million toward production of the aircraft—a figure $320 million higher than the Administration's request.31 President Kennedy, insisting upon "the full powers and discretions essential to the faithful execution of [his] responsibilities as President and Commander in Chief," was successful in turning back this legislative challenge. The bill was changed so that the President was "authorized" to spend the funds, rather than directed.32 If Congress hesitated

30. Id. at 290; see Brashear v. Mason, 47 U.S. (6 How.) 92, 102 (1848); United States ex rel. Tucker v. Seaman, 58 U.S. (17 How.) 225, 230 (1854); United States ex rel. Goodrich v. Guthrie, 58 U.S. (17 How.) 284, 304 (1854). 31. House COMM. ON ARMED SERVICES, AUTHORIZING APPROPRIATIONS FOR AIRCRAFT, MISSLES, AND NAVAL VESSELS, H.R. REP. No. 1406, 87th Cong., 2d Sess. 9 (1952).

32. 108 CONG. KEC. 4694 (1962); Act of April 27, 1962, § 1, 76 Stat. 55.

to push toward a confrontation with the President in this case, the Court would be no more combatant. This is clearly a question to be resolved by the political branches.

Inherent Powers of the President

Theodore Roosevelt's theory of inherent executive power-that the President is limited only by specific constitutional or statutory restrictions33—is said to have been "repudiated by the United States Supreme Court as contrary to the Tenth Amendment, viewing its words of reservation of powers not delegated as precluding inherent executive power.' 1134 Under this interpretation, the President could not assume the authority to impound funds.

The case in question, Kansas v. Colorado,35 concerned an effort by Kansas to restrain Colorado and certain corporations from diverting water from the Arkansas River. The United States filed an intervening petition, claiming that it retained the right to control the waters of the river. The Court dismissed the intervening petition, holding that Congress was restricted to the enumerated powers of the Constitution—a fact "made absolutely certain by the Tenth Amendment"36 -and rejected the claim by Kansas that the Colorado project had been detrimental to the Arkansas Valley in Kansas. This case was obviously restricted to an examination of the breadth of congressional powers in an interstate dispute. Presidential discretion over funds was not at issue. In fact, at no point was executive power even discussed.

Today, Kansas v. Colorado lacks constitutional significance in regard to either federal questions or to executive power. Within a few decades the Court came to recognize the need for a more generous interpretation of national powers over inland waterways.37 The notion that the tenth amendment contained substantive powers for the states was deflated by several decisions. In 1920, Justice Holmes denied that the treaty power was restricted in any way "by some invisible radiation from the general terms of the Tenth Amendment."38 A decade later the Court held that the tenth amendment added nothing to the Constitution as originally ratified,39 and in 1941 Justice Stone dismissed the tenth amendment as "a truism," re

33. ROOSEVELT, AN AUTOBIOGRAPHY 347 (The Works of Theodore Roosevelt, Vol. 20. 1926).

34. Goostree, supra note 16, at 40.

35. 206 U.S. 46 (1907).

36. Id. at 89-90.

37. Sce Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508 (1941): United States v. Appalachian Elec. Power Co., 311 U.S. 377 (1940). 38. Missouri v. Holland, 252 U.S. 416, 434 (1920).

39. United States v. Sprague, 282 U.S. 716, 733 (1931)..

phrasing it to read "that all is retained which has not been surrendered."40

A Civil War case11 is invoked" to argue that the Court has rejected the theory of inherent executive powers, and consequently the right to impound funds. Great emphasis is placed on the Court's statement that "We have no officers in this government, from the President down to the most subordinate agent, who does not hold office under the law, with prescribed duties and limited authority."43 The issue giving rise to this statement involved a financial arrangement between a contractor and the Secretary of the Treasury, John B. Floyd. The contractor, lacking sufficient capital to carry through to the completion of the order, was allowed to draw time-drafts and have these purchased by his suppliers to provide interim assistance. The Government subsequently accepted drafts of $5,000,000, but over a million dollars remained unpaid. Holders of unpaid drafts contended that Secretary Floyd's acceptances were binding on the United States. The Court denied that Floyd possessed constitutional or statutory authority to enter into these agreements. It was in this context that the Court said that all public officers, "from the President down to the most subordinate agent," hold office under the law "with prescribed duties and limited authority." This is readily distinguishable from the practice of impoundment. The Constitution clearly prohibits expenditures which exceed appropriations: "No Money shall be drawn from the Treasury but in Consequence of Appropriations made by Law Contemporary regulations are even more explicit:

1944

No officer or employee of the United States shall make or authorize an expenditure from or create or authorize an obligation under any appropriation or fund in excess of the amount available therein; nor shall any such officer or employee involve the Government in any contract or other obligation, for the payment of money for any purpose, in advance of appropriations made for such purpose, unless such contract or obligation is authorized by law.45

Thus, an executive officer could not, on his own initiative, obligate appropriations and increase expenditures. In impounding funds, however, the President prevents rather than creates obligations, and reduces rather than increases expenditures. The Constitution offers no guidance on the practice of spending less than Congress appropriates, unless we interpret the President's duty to "take care that the laws be faithfully executed" as absolutely binding, excluding the exercise of judgment and discretion.

The 1952 Steel Seizure Case1 is also cited to demonstrate that the

40. United States v. Darby, 312 U.S. 100, 124 (1941).

41. The Floyd Acceptances. 74 U.S. (7 Wall.) 666 (1868).

42. Goostree, supra note 16, at 40: Small. Constitutional Power of President to Order the Impounding of Appropriated Funds 9 (Library of Congress Legislative Reference Service, Aug. 25, 1959).

43. 74 U.S. at 676-77.

44. U.S. CONST. art. I, § 9.

45. 31 U.S.C. § 665(a) (1964).

46. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).