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Washington, D.O., March 18, 1971. Mr, RUFUS L. EDMISTEN, Chief Counsel and Staff Director, Subcommittee on Separation of Powers, U.S. Senate, Washington, D.C.

DEAR MR. EDMISTEN : Thank you so much for your letter of March 11, and for the copy of Caspar Weinberger's statement before the Senate Subcommittee on Housing and Urban Affairs.

None of the statements answer some of the questions I have to ask the Bureau of the Budget, which are:

1. Why, with all the excitement and interest in the environmental program, were last year's funds impounded for pollution control in such activities as the National Park Service?

2. Why, with the interest that we have in the health of our Indians, are the monies for such items as supplies for health programs held in reserve?

Undoubtedly my hearings are before you, and you will find more specific questions on the matters that I have repeatedly brought to the attention of the Congress. Thank you again for your courtesy. Yours most sincerely,


Member of Congress. (Whereupon, at 12:45 p.m., the subcommittee was recessed until 2 p.m., of the same day.)


Senator ERVIN (presiding). The subcommittee will come to order and counsel will introduce the next participant. Mr. EDMISTEN. We will continue with our next three witnesses.

I would like to call to the table, Mr. Chairman, Professor Harvey Mansfield, professor of Government, Columbia University; Professor Arthur Maass, Frank G. Thomson, professor of Government; Harvard University; and Professor Joseph Cooper, who was on our panel this morning, chairman of the Department of Political Science of Rice University. They are going to appear with Professor Mansfield, who will deliver his statement first. Then we will continue our roundtable discussion.

Senator ERVIN. Gentlemen, I want to welcome you to the subcommittee and express our deep appreciation for your willingness to come and assist us in this study.


Professor MANSFIELD. Do you desire me to proceed ?
Senator ERVIN. Yes.

Professor MANSFIELD). Impoundment is a process, a technique, an instrument of policy not intrinsically evil-like murder—and accordingly it is to be judged by its uses: by whom; for what purposes; temporarily or permanently or something in between, indefinitely;

and with what consequences? It is not a novel technique; I have run across a small example of confrontation over it that dates back to the Coolidge administration. This involved an appropriation to the old shipping board to subsidize soft coal exports—an item that the Appropriations Committees insisted on, in response to pressures from Appalachian coal interests in distress, and about which the administration felt about the way the Port of New York Authority now seems to feel about the subway deficit. For reasons I will come to shortly, however, it appears to me that impoundment has recently been displaying a new versatility and is likely to become a frequent and indispensable tool of fiscal administration. If so, it will inevitably be more often the subject of political contest in executive-congressional relations. Such contests cannot be disposed of by labeling the process inherently legislative or executive and accordingly constitutional or unconstitutional. What follows is a brief review of types of situations in which various authorities have resorted to impoundment, and some analysis of the sorts of issues that may be raised. These are more complex and significant than a simple item veto power would provoke.

Who impounds?'

1. (a) Sometimes the Congress itself impounds what it has previously appropriated. The leading examples are probably the Appropriations Rescission Acts, my recollection is that there were two of them I have not checked that-adopted in 1945 on the initiative of the House Appropriations Committee, which set to work immediately after V-J day to cutback uncommitted portions of the vast wartime lumpsum military appropriations. More recent examples occurred in 1968 and 1969 when the House Ways and Means Committee invaded what is normally the province of the Appropriations Committee to impose cutbacks in appropriated funds as part of a package that included an income tax surcharge as an antiinflationary measure.

(6) More often, the Congress has directed the President or the Budget Bureau to impound. The Economy Acts of 1932 and 1933 were drastic examples, the later calling for reduction of as much as 15 percent in civil service salaries and veterans pensions and the removal of whole categories from the pension rolls. The Omnibus Appropriation Act of 1950, adopted after the North Korean invasion, told the President to cut the total by some $550 million without impairing national defense. It also made explicit as permanent legislation a reading the Budget Bureau had been giving to the old Antideficiency Act of 1906, as amended by Executive Order 6166 of June 10, 1933. Since 1950 this has been the standard authority cited by the Bureau for its power, as an incident to apportioning an appropriation before it may be obligated, to establish “reserves” and “to effect savings"—that is, to impound.

(c) Several congressional legislative committees (Armed Services, Public Works, Joint Atomic Energy), have written provisions into authorizing legislation within their jurisdictions that require the committee's approval or consent (express or implied by a stipulated time lapse after notification) before various procurement, installation, or construction projects may proceed. These are sometimes called coming-into-agreement provisions, and they amount to impoundments until the committees are satisfied. They preempt discretionary ground the Appropriations Committees might otherwise occupy.

(d) The Congress, by attaching strings to grants-in-aid and to foreign aid appropriations has often authorized and sometimes directed the impoundment of funds when stipulated conditions are not met. The Social Security Act, for instance, long ago required the withholding of public assistance grants to a State that failed to put its welfare administration personnel under a merit system. The Civil Rights Act of 1964 directs the withholding of school aid grants in certain circumstances where local authorities do not comply with Federal desegregation requirements. Seizures of American property in Peru and of American fishing vessels off the coast of Ecuador have raised the question of impounding further military aid to these countries, under the terms of a legislative rider the State Department seems loath to invoke.

2. The Comptroller General impounds an appropriation, in effect, and conclusively upon the executive branch, when he rules that the money will not be available for a projected expenditure. This is what he did in 1970 in rendering an opinion against the legality of the so-called Philadelphia Plan for public construction contracts. Of course, the impoundment is only temporary if the spending agency has a qualified alternative use for the appropriation before it lapses. Query, whether the Comptroller General would be expected to impound military appropriations if the President, in defiance of the Cooper-Church amendment, should order troops into Thailand.

3. The Federal courts are seldom in a position to impound Federal funds, as State courts often do in taxpayers' suits, because of the general doctrine denying taxpayers the standing to sue and the difficulty of finding any other qualified litigant with an adverse interest. But the courts may review and unblock a legislative or executive impoundment on contract, statutory or constitutional grounds. Miguel v. McCarl, 29 U.S. 442 (1934), was a mandatory injunction case telling the Comptroller General to get out of the way and requiring the Army to pay a pension to a Philippine scout. The Lovett case in the late 1930's held unconstitutional as a bill of attainder a legislative rider impounding any pay otherwise owing to three named government employees. A press dispatch dated February 13, 1971, reports a suit by the Florida Canal Authority seeking to reverse, as unauthorized and unconstitutional, President Nixon's order of January 19 impounding funds for further work on the Cross-Florida barge canal. Suits are presently pending, as I understand it, in lower Federal courts to stop various construction projects alleged to be harmful to the environment, but if any of them succeed, the resulting impoundment of funds would be incidental to an injunction-presumably under the Environmental Protection Act-directly halting the work.

4. (a) Executive agencies, the Office of Management and Budget (ex-Budget Bureau) and department heads, commonly invoke statutory authorizations or presidential directives when they impound funds subject to their control. They do not independently raise separation of powers issues.

(6) Presidents may cite statutes or stand on a presidential prerogative when they order impoundments, and usually do both. The reason for the latter course seems to be that, although the language of the 1950 statute already referred to (" * * * savings * ** made possible by ... other developments subsequent to the date on which such appropriation was made available”) is general, the motives impelling presidents to impound are so varied as to stretch any formula.

What for?

Pre-Keynesian presidents like Coolidge and Hoover, and Andrew Mellon, their Secretary of the Treasury, needed no special motive to justify frugality: an appropriation unspent at the end of the fiscal year was a good in itself. Today the general economic argument for any impoundment, that aggregate spending will thereby be reduced, can only be seriously pressed in periods of strong inflation. No one would repeat F.D.R.'s 1933 course of retrenchment. It does not follow, however, that in an inflationary period such as we have experienced since 1966, presidents necessarily and always seize upon impoundment as a remedy after they have committed themselves to the recommendations in their annual budgets. On the contrary, in the jockeying for position that culminated in the Revenue and Expenditure Control Act of 1968, and again in the setting of expenditure ceilings for the fiscal years 1970 and 1971, we have witnessed the Ways and Means Committee thrusting a duty of impoundment on a reluctant president as a means of obliging him to share more of the political onus of general measures for fiscal restraint. After the November elections in 1966 President Johnson had announced plans to impound some $3.3 billion in the remainder of fiscal year 1967; he evidently hoped he had done his part before asking for the tax surcharge. It was not enough.

Not only restraint but also the need to redirect the use of resources on a sweeping scale furnished the occasion and motive for President Roosevelt's impoundment of remaining WPA funds and all sorts of civilian construction allocations in 1942, in aid of industrial mobilization. In this case the initiative was presidential.

A third broad purpose that impoundment has occasionally served is the enforcement of presidential policies regarding strategic weapons. In the celebrated instances when President Truman in 1949 impounded Air Force funds for more bombers, and later, funds for the Navy's super carrier, and again when Secretary McNamara held back on ABM installations to shield disarmament negotiations, the President was not so much challenging a hostile Congress as taking a side in a controversy over military strategy that had both supporters and opponents in both the executive and the legislative branches.

A fourth broad use for impoundment emerged in 1969 and 1970 as the Nixon administration set about reordering the program priorities of its predecessor. Partly by vetoes and partly by cutbacks of grants for health research, urban renewal, and model cities, defended as anti-inflationary moves, the President tried to make room for funds for the SST, for NASA, for a larger merchant marine, for Safeguard ABM installations, and so on. Plainly the object was not an overall reduction, or not wholly an overall reduction, but despite continuing inflationary pressures, a redistribution of emphases in

poun can be deress has chthe Presideibution is

order to favor different constituencies from those the Johnson administration had cultivated.

Impoundment can strike at smaller and more selective targets. One such can be defended by appeal to another general principle, equity. If the Congress has chosen to favor one among a number of claimants similarly situated, the President can plausibly impound the plum until some more equitable distribution is worked out.

Beyond these uses we come to the category of straight exercises of leverage for power. In this category the uses can be either defensive or aggressive, acts of retaliation, or dispassionate disciplinary or bargaining moves in an ongoing series of transactions. On at least one occasion, I am told, and here I am just out of date, for the committee knows more than I do, President Johnson impounded the funds contained in an appropriation because the congressional committee had stubbornly insisted on retaining in the measure a provision for a committee veto over its use. Without knowing the particular circumstances it would be hard for me to classify such a case in these terms. Members of Congress are not without their own means of parry and thrust. A main safeguard against the abuse of impoundments is that they do not occur as isolated events, and abuses accordingly risk the prospect of proving to be counterproductive.

What of it?

Impoundments are here to stay. Too many precedents have accumulated to allow a label of illegitimacy to be pinned on them categorically. They have too many utilities for members and committees of Congress, as well as for the President, to be wished away.

They are not without limits in scope: Not all appropriations can be impounded, nor any appropriations of certain kinds. The President cannot impound funds, for instance, appropriated for the service of the public debt, or OASI pensions--more broadly, for the settlement of contracts, unless very temporarily. When he impounded highway trust funds in 1967 he fortified his position with an opinion of the Attorney General, who was careful to limit his support of the President's power to such of the trust funds as had not yet become "the subject of a contractual obligation on the part of the Federal Government in favor of a State.” So, if the Congress is willing to restrict its own freedom of action by contracting to appropriate, it can correspondingly restrict the President's freedom to impound; if it retains discretionary power, it grants him some too.

The Legislative Reorganization Act of 1946 called upon Congress to establish, early in each regular session, an aggregate expenditure ceiling for the coming fiscal year. After a couple of trials the Appropriations Committees abandoned the requirement as impractical. Since 1968, however, the combination of an adjustable ceiling with mandatory impoundment targets required to meet it has emerged as a novel technique. It may not be used this year, or in other years when fiscal stimuli, not restraints, are the order of the day; but it seems likely to be recalled to duty whenever restraint in the aggregate along with expansion in particulars is the dominant mood. The 1946 Act sought to embody an impossible dream, that the Senate and the House between them, after a quick look at the President's budget, could establish a firm expenditure policy. The adjustable ceiling

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