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lative branch. The House could punish its own members for disorderly behavior or for slack attendance; it participated in the impeachment process; and in special cases could even fine or imprison a witness for contumacy.co But it did not possess the general power to punish for contempt, and in this particular instance had assumed a function which could be discharged only by the judicial branch.

Nowhere in the Constitution is there an explicit statement of separated powers. It is supposedly implied by the opening sections of the first three articles, vesting legislative power in a Congress, executive power in a President, and judicial power in a Supreme Court and the inferior courts established by Congress. As the Court stated in 1925, however, complete independence and separation "are not attained, or intended, as other provisions of the Constitution and the normal operation of government under it easily demonstrate."e1

Furthermore, the intent of separated powers remains ambiguous. Justice Brandeis issued a famous dictum in which he maintained that the framers adopted a separation of powers "not to promote efficiency but to preclude the exercise of arbitrary powe.."G2A strong case can nevertheless be made that efficiency was a dominant factor in establishing a separate executive.c3 From 1774 to 1789, the Government experimented with committees, boards, and single executives in an effort to remedy the administrative weaknesses of the Articles of Confederation. By process of trial and error it was discovered that a separate executive was essential for accountability and governmental efficiency. Shortly after the work of the Philadelphia Convention was completed George Washington made the following observation: "It is unnecessary to be insisted upon, because it is well known, that the impotence of Congress under the former confederation, and the inexpediency of trusting more ample prerogatives to a single Body, give birth to the different branches which constitute the present general government."6t If we acknowledge that the separation doctrine and the need for executive discretion are compatible and not antagonistic concepts, then the impoundment of funds is more easily reconciled with constitutional principles.

Justice Sutherland's decision in Springer v. Philippine Islands, es exalting separation of powers in its doctrinal form, is also invoked by those who regard impoundment as uncor.stitutional. It is asserted that Springer “reaffirmed this basic constitutional division between the three branches of the Government. This decision has never been qualified by the Supreme Court or by the lower Federal courts."G6

60. Id. at 190. 61. Ex parte Grossman, 267 U.S. 87, 119-20 (1925). 62. Myers v. United States, 272 U.S. 52, 293 (1926). 63. Fisher. Presidential Tax Discretion and 18th Century Theory, W. POL. Q. (to be published March 1970). 64, 30 THE WRITIXGS OF GEORGE WAS:IINGTON 300 (Fitzpatrick ed. 1931). 65. Springer v. Philippine Islands, 277 U.S. 189 (1923).

At issue was a Philippine statute which transferred control over government-owned stock from the Governor to a board composed of the Governor and two legislative members. Sutherland held this repugnant to the Philippine Organic Act which placed all executive functions directly under the Governor or in one of his departments. In emphasizing the pervasive importance of separated powers, he declared it to be a general rule of the American system that "unless otherwise expressly provided or incidental to the powers conferred, the legislature cannot exercise either executive or judicial power; the executive cannot exercise either legislative or judicial power; the judiciary cannot exercise either executive or legislative power."67

Not only did Justice Sutherland rely on a "general rule" which cannot be found in the Constitution, but the specific formulation of separated powers which he advanced was explicitly rejected in 1789 as an amendment to the Constitution. Virginia, Pennsylvania, and North Carolina urged the inclusion of a strict version of the separation doctrine in the national bill of rights, but Congress deleted this recommendation from the final list.cs Moreover, despite dicta on the American system and our governmental principles, Springer involved the Philippine Organic Act-not the U.S. Constitution-and is therefore extraneous to the issue of impoundır.ents by the President. We should go beyond these observations, however, for the case lacks merit even when confined to the Philippine Islands.

Prior to Sutherland's tenure on the Bench, the Court had left it in the states' domain to decide when a mixture of departments or powers was permissible. A state was under no obligation to live by a literal interpretation of its constitutional clause on the distribution of power. To take an early example, in 1825 a Pennsylvania court announced its decision regarding a property dispute, with which the state legislature subsequently disagreed. The case went back to the court and the legislative view prevailed. On appeal, Justice Washington of the Supreme Court observed that nothing in the Constitution "forbids the legislature of a state to exercise judicial functions."09

In a later case, an Illinois act establishing a State Board of Pardons was upheld by the state courts, although the act was in direct violation of two sections of the state constitution. Justice Harlan, writing for a unanimous Court, affirmed: "Whether the legislative, executive and judicial powers of a State shall be kept altogether distinct and separate, or whether persons or collections of persons belonging to one department may, in respect to some matters, exert powers which,

66. Davis, supra note 17, at 47 (footnote omitted). 67. 277 U.S. at 201-02.

68. DUMBAULD. THE BILL OF RIGHTS AND WHAT IT MEANS TODAY 174-75, 183, 199 (1957); 1 A.XXILS OF Coxg. 453 (1834): 1 S. JOUR. 1, 64, 73-74 (1820).

69. Satterlee v. Matthewson, 27 U.S. (2 Pct.) 380, 412 (1829).

strictly speaking, pertain to another department of government, is for the determination of the State."70

This was the position of the Court, prior to Sutherland, regarding separated powers on the state level. As for organic acts governing U.S. territories, the distribution clause was conspicuously absent. Although most of the state constitutions operating at the time of Sutherland contained a distribution clause, the Organic Act of the Philippine Islands did not, nor did the organic acts of Alaska, Hawaii, Panama Canal Zone, Puerto Rico, or the Virgin Islands 71

Sutherland was thus in error on two counts: for assuming a doctrinaire separation of powers at the state level, and for failing to admit that Congress, in legislating for the territories, had made no effort to bind these governments to the characteristics of the American system. In view of the political situation in the Philippines at the time Sutherland delivered his opinion, this projection of American ideas was doubly improper.72

In a fainous dissenting opinion, well-known for its trenchant quality, Justice Holmes drew attention to the fact that the "great ordi. nances or the Constitution do not establish and divide fields of black and white," and that "however we may disguise it by veiling words we do not and cannot carry out the distinction between legislative

70. Dreyer v. Illinois, 187 U.S. 71, 84 (1902). See also Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 225 (1908); Carfer v. Caldweil, 200 U.S. 293, 297 (1906); Reetz v. Michigan, 188 U.S. 505, 507 (1903).

71. THE STATE CONSTITUTIONS AND THE FEDERAL COxSTITUTION AND ORGANIC LAWS OF THE TERRITORIES AND OTHER COLONIAL DEPENDENCIES OF THE UNITED STATES OF AMERICA 1555-1625 (Ketileborough ed. 1918).

72. The opening section of the 1916 Autonomy Act for the Philippines, ch. 416. 1. 39 Stat. 515. specifically cited independence as the objective. In order to achieve stable independence, the government was to be placed in the hands of the people as quickly as possible, so that. "by the use and exercise of popular franchise and governmental courers, they may be the better prepared to fully assunie the responsibilities and enjoy all the privileges of complete independence.” The American legislator who sponsored this bull explained that it "practically confers all legislative power upon that people, thus giving to them the control of their domestic afiairs in all essential particulars.” Tiongco, The Genesis of the Congress of the Republic of the Philippines, i Grad. and Fac. Studies, Centro Escolar Univ. 201 (1950).

The goal of complete autonomy was encouraged by Governor-General Fran. cis B. Harrison. When his successor, Leonard Wood, tried to reimpose American control. Filipino lenders protested to Congress that the thiccries and principles of Governor Wood were "ulterly repugnant to the policies that go to make up the corner stone of Philippine autonomous government." It was incompatible with the theory of free government to inject "the autocracy of an irresponsible appointed executive into a representative democracy such as the Congress of the United States implanted in the Philippines." ANNUAL REPORT OF THE GOVERNOR GENERAL OF THE PHILIPPINE ISLANDS FOR FISCAL YEAR 1923, H.R. Doc. No. 485, 68th Cong., 2d Sess. 44 (1923).

Filipino legislators set up national banks and corporations in an effort to prevent foreign exploitation and overcharging. Wood considered such measures contrary to laissez-fairc principles and directed that the government ventures be disposed of as soon as possible. Sliort oi this, he would have declared management of the government-owned corporations an exclusively

and executive action with mathematical precision and divide the branches into watertight compartments . . . ."73

Conclusion A number of decisions by the Supreme Court are being invoked in an effort to demonstrate that Presidents lack constitutional authority to impound funds. Taken from context, various phrases of the Court appear to have bearing on the issue, but on closer inspection they have little, if any, relevance. Furthermore, efforts to justify impoundments on the basis of other court decisions are also not persuasive."

The struggle between the President and Congress over impounded funds is essentially political. The decisive appeal is not to legal principles and Court decisions but to constituencies and agency support: "[T]he President can and may withhold expenditure of funds to the extent that the political milieu in which he operates permits him to do so."75 Of course political leverage is maximized by claiming constitutional support, and both sides consequently invoke the separation doctrine and the "intent of the framers" to their own advantage. If Congress appropriates and the President refuses to spend, legislators

chastise this as an encroachment upon their spending powers. And · yet if Congress tried to compel the President to spend the funds, he i would charge usurpation of executive resporas.bilities.

Instead of introducing into this debate fragmentary evidence from prior Court decisions, it is more instructive to understand the larger political framework within which the President decides to impound funds. Agency heads and the military services which have been denied their budgetary requests by the President frequently appeal directly and successfully to Congress for more generous funding. Since the President lacks an item veto, he must impound the unwanted funds to preserve his budgetary objectives and maintain control over his own executive officials.

Whether impoundment is justifiable must be decided on a case-bycase basis. To take but one example, President Truman's impoundment of $615 million in Air Force funds in 1949 would seem to be a clear denial of the will of Congress. That was not the case. The House had voted to increase Air Force funds, while the Senate joined with the President in opposing the increase. The matter lay deadlocked in conference committee, with adjournment close at hand and the military services waiting for funds to meet their payrolls. A motion by the Senate to vote continuing appropriations was rejected by the House. To break the deadlock, the Senate reluctantly accepted the extra Air Force funds, but only on the understanding that "if the money is appropriated it may not be used” by the President.76 With this legislative background in mind, is it fair to characterize the President's impoundment as a denial of the will of Congress?

executive function. He took this step on November 9, 1926, abolishing the Board of Control with its legislative members. GRUNDER & LIVEZEY, THE PHILIPPINES AND TIE UNITED STATES 166-68 (1951). It was this complex political situation which Justice Sutherland sought to unravel with his homilies on the separation doctrine.

73. Springer v. Philippine Islands, 277 U.S. 189, 209, 211 (1928).

74. E.g., Campagna v. United States, 26 Ct. ci. 316 (1891); Hukill v. United States, 16 Ct. Cl. 562 (1881), cited in Kranz, A 20th Century Emancipation Proclamation: Presidential Power Permits Withholding of Federal Funds from Segregated Institutions, 11 AM. U.L. Rev. 48, 65 (1962).

75. Miller, Presidential Power to Impound Appropriated Funds: An Erer. cise in Constitutional Decision-making, 43 N.C.L. Rev. 502, 533 (1965).

It is true that impoundment is outside the Constitution, but so also is the action of Congress when it impounds a bill in committee and prevents a vote from taking place. One practice is no more countenanced by the Constitution than the other. Nor does it seem equitable to allow Congress the luxury of other extraconstitutional benefits-the filibuster, legislative riders, Senatorial Courtesy, "committee vetoes," seniority rule, and blockage in the Rules Committee while insisting that the President give up the practice of impounding funds and live henceforth by the letter of the Constitution. Finally, it is nothing short of credulous to have a half dozen legislators form a majority in their appropriations subcommittee, succeed in having their decision ratified by the full Appropriations Committee and later by both Houses, and then regard the final vote as "the will of Congress."

Impoundment is but one element in the twisted fabric of the appropriations process. Unless reform is to be executed in a number of areas, we should not expect it in one. If Congress denies the Presi- { dent item-veto authority, impoundment will remain an essential instrument for protecting budgetary policy and avoiding unnecessary and costly programs. As is true of all instruments of power, impoundment is subject to abuse, but the record of the past three decades suggests that Presidents exercise this power with considerable restraint and circumspection. Whatever our judgment of presidential impoundment of funds, it remains a political, not a constitutional, problem.

76.95 Conc. Rec. 14355 (1949) (remarks of Senator Thomas). See also id. at 14855 (exchange between Scnators Saltonstall and Ferguson); Statement of Oct. 29, 1949, PUBLIC PAPERS OF THE PRESIDENTS OF THE UNITED STATES: HAFRY S. TRUMAN 1919, at 538-39 (1961).

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