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to accomplish the lesser objective can be stretched to justify the latter. As a consequence, despite its wording, section 1211 did not restrict subsequent exercises of withholding or impoundment, but rather has served as a platform for sizable growth or expansion of the practice in the fifties and sixties.

So here we are in this fourth and current stage of increasing use of impoundment to the point where, as I understand from figures given to the subcommittee, in the current fiscal year something like $11 billion is being withheld.

Nor has the current stage in the development and emergence of the practice of impoundment been characterized simply by an expansion in the number and scope of particular impoundments. Executive success in expanding both the number and scope of various exercises of the impoundment power has tended to relegate distinctions and limits accepted by past decades to oblivion and to encourage executive officers and other commentators to assert new grounds or bases for impoundment. I will have something more to add in this regard later in my presentation.

A second conclusion or lesson that can be drawn from the history is that Congress has had conflicting goals and motives and that this conflict has contributed significantly to the growth of the practice of impoundment to its current dimensions.

During the first two stages of development all the steps taken to establish and expand the practice of impoundment either had substantial congressional support or did not arouse any substantial congressional opposition.

The reasons for this are, of course, not difficult to understand. On the one hand, the Congress is vitally interested in economy, in savings. On the other hand, during the twenties and thirties it did not perceive that impoundment posed any substantial threat to its will or purpose with reference to particular programs.

Thus, it was not until the forties, the third stage of development that I have identified, that Congress became aroused over the impoundment of funds. Still, even after Congress perceived that impoundment could indeed threaten its legislative will or purpose, its desire for economy blunted any counterattack either to put an end to impoundment or to confine the executive simply to impoundments that did not seriously threaten program objectives. During the course of the war, there were two attempts to attach riders to bills to make appropriations mandatory. In one instance, the requirement was substantially watered down and in the second instance, the requirement did not pass.

Moreover, after the war's end Congress was highly responsive to the Budget Bureau's desire for explicit authority to secure and establish impoundment on a firm statutory base. It is true, of course, that the Budget Bureau drafted the language of the new legislation in terms that suggested that impoundment would be carried on only to effect savings without interfering with congressional purpose. Nonetheless, it is also true that Congress' desire for economy was so strong that it took no pains to rework the proposed new language, despite its generality and despite the record of severe conflict with the Budget Bureau over impoundment during the war. Rather, Con

gress simply bowed to the wishes and initiative of the House Appropriations Committee.

Since 1950, despite the increase in the number and scope of various impoundments, Congress' desire for economy has continued to block any congressional move to impose limits on the Executive. It is true that in several cases Congress has adopted language that rendered expenditure mandatory. But these have been relatively few. Moreover, it is also true that designing legislative language in this area that would preserve the Budget Bureau's ability to effect substantial savings while still limiting its ability to impair or negate congressional purpose is no simple or easy task. But it is not as difficult as the Budget Bureau pretends and Congress has thus far made no serious effort to come to grips with the problem. Few hearings have been held; few bills have been submitted; and those few that have been introduced have never emerged from committee.

A third lesson or conclusion that can be drawn from the history of impoundment is that the Executive has indulged in a number of arguments to justify and advance this practice. I think it is worth pointing out to the Executive that their case has varied substantially over time.

The intial executive case for withholding was, of course, put forth by Charles Dawes who instituted the practice of withholding for purposes other than to prevent deficiencies. Dawes, as we have noted, correctly claimed that the Budget and Accounting Act of 1921 had established the new budget system to promote economy and efficiency in government. He therefore inferred that the Executive need not regard appropriations as mandatory and could use the procedures of apportionment to effect savings as well as to prevent deficiencies. However, as we have also noted, Dawes' case for withholding was a carefully circumscribed one which justified it only as a means of saving money while accomplishing congressional will or purpose. I have several quotes of Dawes that illustrate his views. In one he says

The Bureau of the Budget is simply a business organization whose activities are devoted constantly to the consideration of how money appropriated by Congress can be made to go as far as possible toward the accomplishment of the objects of legislation.

Another one worth quoting is as follows:

I want to say here again that the Budget Bureau keeps humble, and if it ever becomes obsessed with the idea that it has any work except to save money and improve efficiency in routine business it will cease to be useful in the hands of the President. Again I say, we have nothing to do with policy. Much as we love the President, if Congress, in its omnipotence over appropriations and in accordance with its authority over policy, passed a law that garbage should be put on the White House steps, it would be our regrettable duty, as a bureau, in an impartial, nonpolitical, and nonpartisan way to advise the Executive and Congress as to how the largest amount of garbage could be spread in the most expeditious and economical manner.

I am sure today the Budget Bureau would tell you that they could impound the funds for such a purpose.

Nor did Dawes doubt in any way Congress' right to increase appropriations above and beyond presidential recommendations or suggest that the President had any recourse other than exercise of his

veto.

No further consideration or development of the Executive's case for withholding was made or needed during the first two stages of its growth, i.e., during the twenties and thirties. The commencement of the third stage, however, in the early 1940's brought about an intense. reconsideration and reexamination of the grounds for withholding due to President Roosevelt's decision to impound funds for projects and programs that the administration regarded as nonessential to the war effort.

The reaction within the Budget Bureau to the need to find grounds for controlling the rate and tempo of program implementation as well as blocking particular projects or aspects of programs per se was one of bewilderment. J. D. Williams' excellent case study of impoundment during the war demonstrates this clearly as well as the character of the ultimate executive response.

The Budget Bureau's search for grounds upon which to base the extension in practice of the scope of withholding turned up little except the war power. Thus, the Bureau argued that the President had power to defer or suspend construction projects under his authority to prosecute the war. Still, the Bureau was reluctant to press the war power argument or even to give it primary emphasis. It decided, rather, simply to put the best face on new practice that it could and to stress the President's power, through the Budget Bureau, to manage administrative operations economically and efficiently. In short, essentially the Bureau continued to rely on the Dawes doctrines, to rely on the breadth of the words, despite the changes in circumstances and in effect.

With the war's end many in the Bureau felt it would be advantageous to secure statutory authority for impoundment. This was true for several reasons. On the one hand, the war power could no longer be relied upon. On the other hand, as the J. D. Williams study reveals, not only did the Budget Bureau realize that grounding impoundment on the President's authority to manage the executive branch did not confer authority to negate congressional purpose; in addition, many in the Bureau were unsure of the President's authority to effect savings in cases that involved even partial nonfulfillment of program objectives stated in law. They were, for example, unsure of their ability to withhold under changed conditions, which made full implementation of a particular program uneconomic.

So the Bureau decided to press for statutory authority and in pressing for statutory authority, the Budget Bureau did not claim or seek any substantial extension in the grounds for impoundment. Rather, both the report it and the GAO submitted to Congress and the language it proposed indicate a traditional and restrained approach to impoundment. All the Budget Bureau requested was confirmation of the doctrine that appropriations were not mandatory, and authority to effect savings in cases where they could be made without interfering with programs or where new conditions or developments subsequent to the appropriation made full expenditure wasteful or inefficient in terms of that program's objectives. And, as understood at the time, that is all that the new language in section 1211 granted.

Since 1950, however, executive claims regarding the President's authority for impoundment have expanded so greatly as to establish

virtually a qualitative difference between executive contentions before 1950 and executive contentions after 1950. This alteration in the character of executive claims did not come about all at once. Nor in justifying its actions has the executive ceased to rely on the doctrine that appropriations are not mandatory or the statutory authority in section 1211 to effect savings through greater efficiency or because of changes in conditions. However, the Executive now interprets these bases of authority as if they were blank checks and accords little or no recognition to the circumscriptions or limits they were originally intended and understood to include.

Moreover, the Executive, because of the success it has enjoyed, has begun in recent years to justify the withholding of funds by asserting that the President has inherent, and by implication entirely selfsufficient and even unlimitable, power to impound under the clauses of the Constitution that vest executive power in him. This represents quite a change and quite a difference from the case the Budget Bureau made in the twenties, the thirties, or even the forties.

A fourth and final lesson that can be drawn from the history of the development of impoundment from its beginning in 1921 to the present day is that executive exercise of this power exists entirely at the sufferance of Congress.

This fact has been obscured by the character of executive claims in recent years as well as by an excessive and unjustified amount of deference to these claims as a consequence of the success the executive has enjoyed in impoundment.

In truth, at least theoretically, even the Executive's authority to impound for purposes that go beyond the statutory power granted in section 1211 remains weak. In other words, to the extent that savings effected by withholding do not derive from greater efficiency or impair programs for reasons other than because conditions specific to a particular program have changed so as to make full implementation wasteful, the grounds or justification for withholding are weak. Nor does the assertion of inherent executive power to impound remedy the situation. Not only is the "inherency" of any power that requires more than 170 years to become apparent dubious; in addition, this assertion involves the tenuous proposition that the President's power under the Constitution to insure that the laws be faithfully executed permits or allows him to break them. Similarly, claims based on the debt ceiling, congressional expenditure limitations, and the Employment Act flounder on the possibility of satisfying these requirements by means other than impoundment or at least asking Congress to resolve the difficulties rather than assuming plenary power to do so. The fact that the Executive may regard impoundment as a convenient and even essential means of achieving widely agreed upon policy objectives, for example, inflation control, does not mean that it is a legal one. Thus, fundamentally the best case the Executive has for impoundments that impair or negate programs is simply precedent. simply the fact that especially since the midfifties it has done so repeatedly.

However, whether the Executive has authority to impound funds in ways that impair or negate programs in the absence of congressional instruction or direction is not really the crucial point. The question of whether the power to impound exists at the sufferance of Congress

rather hinges on whether Congress by law can limit or forbid impoundment. And here both theory and precedent overwhelmingly support Congress' authority.

In theoretical terms Congress clearly has the power to direct and limit the character of executive discretion. This is what the lawmaking power is all about. Indeed, Congress' general power in this regard can only be convincingly questioned if a clear violation of some expressly granted executive prerogative is involved, and impoundment is not such a prerogative. In terms of precedent or practice, even though the past decade represents a highpoint in expansive use of the withholding technique, all the Presidents elected in the 1960's have in one way or another bowed to congressional power over impoundment when it has been asserted. There are a number of cases in which Congress had made appropriations mandatory and in which the President has bowed to congressional order.

There is, then, little doubt that control over expenditures remains where the Constitution placed it. Congress has the option to do more than simply complain about impoundment. It can, if it chooses, abolish it entirely or simply continue to make particular expenditures mandatory on occasion. Nor is it limited to such Hobson's choices. It can also seek means of establishing a far better balance between the needs of the Executive for flexibility and its own prerogatives as lawmaker than currently obtains.

Professor Maass will address himself to that problem. (The prepared statement follows:)

EXECUTIVE IMPOUNDMENT OF APPROPRIATIONS

By Professor Joseph Cooper, Department of Political Science, Rice University In testifying today Professor Maass and I wish to make a joint presentation. I will speak first regarding the history of impoundment of appropriations by executive officers and the lessons to be drawn from that history. Professor Maass will then discuss impoundment as a policy problem, basing himself on my historical analysis. It should be noted that though we have divided our labors, we have coordinated our efforts with the result that all the conclusions we shall present are common or shared.

The history of impoundment or withholding of appropriated funds by executive officers is a fascinating and enlightening one, albeit one that has been virtually ignored up to the present moment. My research into this topic, though far from exhaustive, has been extensive enough to allow me to conclude that there are a number of valuable lessons or conclusions to be drawn from the process by which practice of impoundment developed. I would like to cite four such conclusions, each of which I believe helps to place the issue of impoundment in perspective.

First, the practice of executive withholding or impoundment of funds is a product of incremental development since 1921 in which the final or ultimate result was not originally intended or even foreseen for several decades. To say this is not necessarily to condemn it. Many familiar Congressional arrangements and procedures are products of a similar form of development-the committee system, the rules governing the introduction of bills, etc. Nonetheless, the fact that the current practice of impoundment evolved incrementally and represents an unplanned result is a critical piece of information for those who wish to evaluate either its legal basis or its practical benefits and costs. The process by which the current practice of impoundment developed can be divided into four stages. The initial stage commenced in 1921 with the creation of the Budget Bureau. The first Director of the Bureau, Charles Dawes, believed firmly that the prime purpose of the new agency, under the legislation that established it, was to bring efficient, business management to bear on the financial operations of the federal government. One of the steps

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