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

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 would charge usurpation of executive respons.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

executive function. He took this step on November 9, 1926. abolishing the Board of Control with its legislative members. GRUNDER & LIVEZEY, THE PHILIPPINES AND THE 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 Exercise in Constitutional Decision-Making, 43 N.C.L. REV. 502, 533 (1965).

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?

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 Committeewhile 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 Hruses, 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 CONG. REC. 14355 (1949) (remarks of Senator Thomas). See also id. at 14855 (exchange between Senators Saltonstall and Ferguson); Statement of Oct. 29, 1949, PUBLIC PAPERS OF THE PRESIDENTS OF THE UNITED STATES: HAIRY S. TRUMAN 1949, at 538-39 (1961).

Senator GURNEY. Go ahead, sir. That is the point I wanted to clarify.

Senator MATHIAS. I think it is a useful point. Of course the modern relationships between the Congress and the executive branch in large part did originate with the Franklin Roosevelt administration and we are wrestling with some of the results of those relationships today.

To get back to where we were, I take it that you assert the President's power to impound on the basis of his authority in article 2, section 3-to faithfully execute the laws. But it should be noticed the Constitution also provides that "the Congress shall have the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by the Constitution in the Government of the United States or in any department thereof." Now, the Anti-deficiency Act of 1906 and the subsequent enactments that you have cited would all appear to be that class of legislation. Do you believe that the Congress, by appropriate legislation, could alter this practice which we have been discussing? Mr. WEINBERGER. Yes.

Senator MATHIAS. I am not suggesting that I would be in favor of this, but what if we should provide that these expenditures be automatic?

Mr. WEINBERGER. I think we would have to examine what Congress left on the books in such a contingency. If the Congress left the debt limit on the books, if the Congress left the ceiling expenditure on the books, we would still have to try to operate

Senator MATHIAS. Then you would have conflicting congressional actions contradictory actions.

Mr. WEINBERGER. You would have different mandates that the President would have to carry out as he has at the moment.

Senator MATHIAS. Does the Senator from Florida have any further questions at this time?

Senator GURNEY. Yes.

Senator MATHIAS. I have several more but I will reserve them. Senator GURNEY. I want to assure you first of all, Mr. Weinberger, that I am not trying to engage in a debate on this. What I am interested in is the history of this thing.

Mr. WEINBERGER. Surely.

Senator GURNEY. I want to find out when this began and what other presidents exercised this authority or whether it actually is a more recent action of the executive branch of the Government.

It seems to me that we have really two main points here. One, as you have well put it, is the management of funds and I do not think anybody would quarrel with that, that the Executive must manage funds and that means a great many things. If, say, a billion dollars is appropriated for a new program, obviously, you could not spend that amount all at once until you get machinery set up to do it.

Mr. WEINBERGER. That is part of it, yes, sir.

Senator GURNEY. I appreciate that. But then on top of the management of funds, it seems as though there is another point. That is a denying of the will of Congress in some cases where funds are impounded. Let us get to that point.

What is your opinion there? If clearly the President does not want to spend money because he disagrees with the Congress for a certain program, do you think he has the right to do that?

Mr. WEINBERGER. Well, Senator, there is one problem that I think perhaps I have not emphasized sufficiently. That is that the whole nature of the appropriation process is such that Congress is, in one way or another, virtually prevented from taking an overall look at the effect of their total actions. The Congress acts on a single appropriation bill for a particular agency or a particular activity. There is only one agency in the Government that has, in a sense, the overall responsibility for the overall picture at any given time. When Congress acts on the first two or three of four appropriations bills and then starts acting on the fifth, there is not any automatic machinery by which the total outlays required at that particular time are now available to the Congress. They can be found; they are there. But there is not any one agency in the Congress or elsewhere in the Federal Government besides the Office of Management and Budget where the overall picture is constantly available and where, because of the President's unique responsibilities, it has to be available to him. As a result, it may very well appear to Congress that by reserving the spending of a portion of an individual bill, there is some attempt to thwart the will of Congress. Whereas what is actually happening is that in our overall examination and in our knowledge that this particular appropriation will take us over a ceiling or over a debt limit or to a point where it would be clearly inflationary to let it go that particular month or year, it is necessary to take other action. These reports, therefore, are made to the President and his action follows, because he has the overall responsibility and the overall knowledge of what the total expenditure picture of the Federal Government is at any one given time. So that while an individual action on a bill may appear to the sponsor of a bill-and I have been in the legislature in California and I am familiar generally with the appropriation process and with the desires to have money spent once a bill is finally passed-it may appear to be simply a refusal to do what Congress has ordered, the problem is Congress has ordered several things to be done, and the President has the overall responsibility.

I would like to see many changes in the appropriation process that enable Congress to have before it an overall total and a running picture such as we have to have at all times. And I think there would be much clearer understanding of the reasons for temporary impoundments or reservations on the President's part if that were the case.

I think that it has to be looked at in that broad overall context and not from the point of view that here is a President who is seizing this means of blocking Congress from getting something that it wants that he may not want. There is no feeling of that kind that accompanies the impoundment of the funds that are now on the books, though I think it is fair to say that that may have been the case in previous administrations from time to time, as evidenced by some of the statements made that we have quoted in the statement I made this morning.

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This is a requirement that the President has of insuring that the overall fiscal running total is known, and is observed, and that the warning signs which come up at various points in the spending process are heeded. That is esentially what he is doing when, from time to time, various appropriations are temporarily withheld or impounded for a few weeks or a few months.

Senator GURNEY. Well, I appreciate that and that is essentially what you testified to before. But that really was not my question. My question was this: Let's assume we do not have any problem with the debt ceiling, there is no problem about prudently spending the money for a particular program. And I know we can give examples of this if we want to point our fingers here and there.

I am not talking about the present administration. But you have a clear case of where the President does not want to go ahead with a particular program for which Congress has authorized and appropriated money. My question was do you think the President has the right to stop the money in such a case?

Mr. WEINBERGER. I think there is a basic right to withhold the appropriation if the other factors are present. You have posed a question where the other factors are not present.

Senator GURNEY. That is right, because I want to get to the heart of this particular problem.

Mr. WEINBERGER. And it is simply a naked question of whether or not the President can withhold funds from a program which he personally opposes.

Senator GURNEY. That is right.

Mr. WEINBERGER. My opinion on that is worth very little. I think the important thing is the actions that various presidents have taken in the past and uniformly that I know of the presidents in the past have taken actions that indicate they do feel they have this basic power. I think that the important fact here is that the Congress has the ability to override that if the action is indeed contrary to what the Congress wishes, and they have done that on occasion.

Senator GURNEY. Well, but does it? Let me give you an example here, again from the Library of Congress Reference Service about this matter. I do not know whether it is a fact or not. I am simply using it as an example.

Just prior to the outbreak of World War II, the Armed Forces Committee, and particularly Senator Russell, was interested in the ROTC's around the country. I guess he saw trouble arising on the European scene. A blind man could have seen it. It was going on for some years prior to our involvement. So he and some others in the Senate, particularly, thought it would be a good idea if we turned out a whole lot of ROTC officers.

Well, for 3 successive years, the then President impounded these moneys and did not go ahead with this ROTC program, although Congress continued to put up the money year after year after year. I think this probably was a pretty clear case of what I am talking about. We did not have any debt ceiling problems then, this was not a matter of management. This was purely and simply a matter of a difference of opinion between the President and the Congress. This is what I am talking about. This is the example.