PRESIDENTIAL IMPOUNDMENT OF FUNDS TESTIMONY OF U.S. SENATOR GEORGE MCGOVERN, TO THE SUBCOMMITTEE OF SEPARATION OF POWERS, U.S. SENATE COMMITTEE ON JUDICIARY, MARCH 24, 1971 Mr. Chairman, as you are well aware, the past several years have seen a swift growth in concern over the proper sharing of powers between the Executive and Legislative branches. To a great extent the new attention to the Constitutional separation of powers has been inspired by the search for presidential authority to prosecute the war in Indochina. Certainly there are profound issues raised by that investigation. They were debated through much of last summer, both in the Congress and around the country. But your decision to examine the Constitutional questions involved when the executive withholds funds appropriated by the Congress is no less in the public interest. In this case, too, I believe we have an obligation to assure the American people that the Congress is not yielding up its obligations and its rights to a zealous Executive Branch. I appreciate the opportunity to testify both because I share that general concern and because my own State has suffered major, direct harm as a consequence of Executive impoundments. I know that South Dakota has not been the only victim. Executive Branch decisions not to proceed with programs and projects which have been authorized and funded by the Congress have the effect of degrading the Congress as a co-equal branch of national government. If there are no effective restraints on his claimed authority, then the Congress is left with virtually no purpose other than to either ratify decisions of the Executive Branch or restrict the Executive by withholding funds. We can make "no go" decisions. But we cannot legislate new programs or projects with any confidence at all that they will in fact become a reality. A few days ago I read an article entitled "Funds impounded by the President: The Constitutional Issue" by Louis Fisher, an Assistant Professor of Political Science of City University of New York. The treatise was published by "The George Washington Law Review" in 1969. Reading the article led me to conclude that the constitutional questions involved in Presidential impoundment of funds are indeed close and difficult. The members of this Committee are distinguished members of the bar. I am a layman. You may be sure that I do not come here today with any intention of presenting a legal brief. I suggest, however, that if you conclude that the power to impound funds is inherent in the presidential office then you should at least consider limiting the circumstances and the techniques under which this authority might appropriately be used. Louis Fisher's article was published in October of 1969. Writing prior to the time of publication he said "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." However you judge the degree of restraint and circumspection exercised by presidents prior to 1969, you have to conclude that the Nixon Administration does not feel constrained by Congressional decisions to the same degree as their predecessors. At the present time, $11 billion appropriated by Congress to fund authorized projects and programs is in budgetary reserve. A minimum of 40 programs and projects authorized and funded by the Congress have not been initiated. Last year the Congress, by specific write-ins, provided funds for 140 new water resource project starts. Every dollar has been impounded. Funds provided by the Congress in 1970 for three new reclamation starts and 9 new starts for the U.S. Corps of Army Engineers have been placed on budgetary reserve at least through fiscal 1972 unless the Congress acts. One of the three reclamation projects, the Oahe diversion project in my home state, was authorized in 1944 as an integral and key feature of a comprehensive program for Missouri River development. Authorizations contained in the Flood Control Act of that year represented a congressional determination that the damaging floods of the Missouri-Mississippi system should be brought to an end as rapidly as possible and the flood waters put to beneficial use. 60-337-71- -12 Fort Peck Dam in Montana was already in place. To contain the floods that had reportedly damaged Sioux City, St. Joseph, the Kansas Cities and St. Louis as well as towns and agricultural lands in between, the Congress authorized 5 additional storage dams on the mainstream of the river. Obviously, containing the flood waters of the Missouri would, and did in fact, bring great benefit to the cities and towns on the Mississippi below St. Louis. Four of the five new storage structures are located in South Dakota. Together they convert the Missouri River in my state from a free flowing river to a vast chain of lakes stretching the entire length of South Dakota. The four reservoirs have permanently flooded over 500,000 acres of valuable river bottom land. In 1944, recognizing that each of the two Dakotas was going to experience severe economic penalties to provide storage sites for those flood waters, Congress determined that it was obligated to provide compensatory benefits. Fortunately, converting downstream flood water to irrigation use in the Dakotas was economically attractive. With this in mind Congress authorized major irrigation projects for each state as a part of the comprehensive program. For a variety of reasons, including the sympathy of South Dakota citizens for downstream flood victims, the Oahe Diversion project in South Dakota became the last of the major features of the comprehensive development program to be placed under construction. To make certain that the project conformed to existing law and policy the Johnson Administration submitted a first phase for reauthorization in 1967. The Congress acted favorably in 1968. All South Dakotans were keenly disappointed when the President's budget for fiscal 1971 did not include a request for funds to begin building this long delayed and urgently needed project. The case for the project was so convincing that we were able to secure a $350,000 "write-in" from the Senate to place the project under construction. Although our colleagues in the House were unable to keep the money earmarked for construction purposes it was retained for land acquisition purposes in the final public works appropriation bill. Later both Secretary Hickel and Commissioner Armstrong assured South Dakota people that Oahe was indeed a bona fide construction start. Mr. Chairman, I have explained the historical situation with respect to the Oahe Diversion project in some detail so that the record will reflect the effort of both the Congressional and Executive Branch commitment to this particular public works project. Certainly the Congress has made its wishes completely clear. With this background I am sure that you will be as shocked as we were when we learned that the money appropriated by the Congress for land acquisition on the Oahe project had been impounded by the President. To further demonstrate their disdain for congressional decisions, the budget documents made it clear that the Executive Branch contemplates no action on Oahe in fiscal year 1972. They are apparently determined to demonstrate their complete disregard for actions of the Congress, for we have been told now that they are not only halting this project but are also re-examining it to determine again whether it is "economically and financially viable," on the basis of criteria different from those contemplated by the Congress in 1968 and signed into law by the President. The Congress has consistently refused to grant the President item veto authority. If there are legal and policy justifications for permitting him to assume the equivalent of such authority through impoundment of congressionally appropriated funds, then we ought to assure that he does, indeed, act with restraint and circumspection. Restraint requires that the authority should be used rarely. I suggest that circumspection requires further that it be used only when there is legitimate doubt as to congressional intent, or when procedures have been established for congressional reconsideration of an earlier decision. As I said at the beginning of my remarks, I am grateful to this Committee for undertaking this review. I have underscored one specific Presidential impoundment partly because it vitally and adversely affects my state and partly because I consider it a good example of gross abuse of a Presidential authority that may not even exist. We must find a way to re-establish and maintain the authority of the Congress to make national policy decisions and to require their execution by the President. I have high hopes that your deliberations will achieve that goal. Mr. RUFUS L. EDMISTEN, Chief Counsel and Staff Director, CONGRESS OF THE UNITED STATES, Subcommittee on Separation of Powers, U.S. Senate, Washington, D.C. HOUSE OF REPRESENTATIVES, Washington, D.C., March 18, 1971. 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. JULIA BUTLER HANSEN, (Whereupon, at 12:45 p.m., the subcommittee was recessed until 2 p.m., of the same day.) AFTERNOON SESSION 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. STATEMENTS OF PROFESSOR HARVEY C. MANSFIELD, PROFESSOR Professor MANSFIELD. Do you desire me to proceed? 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. (b) 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 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. |