Page images
PDF
EPUB

trolling the tempo or rate of program implementation and controlling the achievement of a program per se are relative rather than absolute. The one shades into the other with the result that the differences can be ignored or obscured and thus the authority claimed 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 1950's and 1960's.

In the mid and late 1950's, after an initial period of restraint during which the memory of the conditions surrounding the passage of Section 1211 faded. the Budget Bureau impounded hundreds of millions of dollars appropriated for various missiles, submarines, troop levels, and aircraft. In the domestic area funds for construction projects again began to be impounded. In the 1960's the amounts impounded in the military area total in the billions. In 1961, for example, $525 million was appropriated for manned bombers and $180 million for the RS-70 bomber, but none of the money was expended. In 1966 $350 million was added to the budget for missiles, nuclear frigates, and the Manned Orbiting Laboratory, but none of the funds were expended. Yet, it is in the domestic sphere that the most significant expansion or growth has occurred during the last decade. The Nixon Administration, for example, has either withheld or plans to withhold billions of dollars in funds not only for various types of water resource, road, and park projects but for a variety of urban programs.

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. For example, whereas in 1949 the Hoover Commission believed that the President required statutory authority to impound funds and recommended that he be granted authority "to reduce ex. penditures under appropriations, if the purposes intended by the Congress are carried out,” in the past few years commentators have seriously questioned whether Congress can require the President to spend funds and the Budget Bureau has begun to claim that the President has authority directly from the Constitution to withhold funds wholly on his own discretion.

So much then for the first conclusion or lesson regarding the incremental growth and unplanned character of current impoundment practice. A second conclusion or lesson that can be drawn from 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. Dawes' claims that appropriations were not mandatory and that the apportionment system should be used to effect savings were accepted, not challenged. Similarly, the use of the apportionment system to cut back overall spending, a step indulged in by Roosevelt as well as Hoover in the 1930's, aroused little, if any. opposition. Nor did substantial opposition develop when the Budget Bureau moved to control the tempo or rate of program implementation with regard to specific programs or when the President through a series of moves centralized control over apportionment in the Budget Bureau.

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 1920's and 1930's it did not perceive that impoundment posed any substantial threat to its will or purpose with reference to particular programs. We may note that Dawes took pains to state his new doctrine in ways that would reassure Congress and emphasized that he intended only to confine expenditures to "the smallest amount upon which the business of government can be efficiently administered under the program outlined by Congress." Similarly, Roosevelt and Hoover's actions posed no threat to particular programs, but only to the level of general governmental activity. Finally, before 1940 Budget Bureau action to control the level of specific

programs does not appear to have been extensive. The Task Force Report of the Hoover Commission noted in 1949 that until 1940, when spending agencies were required to secure Budget Bureau approval for their allotments, apportionment continued to be controlled primarily by the spending agencies themselves.

Thus, it was not until the 1940's, the third stage of development that we have identified, that Congress became aroused over the impoundment of funds. Nor is this surprising since it was at this stage that the executive began to impound funds for specific projects, that the executive moved far closer to control of the achievement or execution of programs per se than had formerly been the case. 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. On two occasions the Senate attached riders to bills to compel expenditure of the funds authorized or appropriated. In the first instance the stringency of the requirement was substantially reduced in conference; in the second instance the rider was defeated in the House. As a consequence, though the executive did retreat in a number of cases, it successfully impounded hundreds of millions of dollars appropriated for various projects dur. Ing the war.

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 the impoundment during the war. Rather, Congress simply bowed to the wishes and initiative of the House Appropriations Committee. This conmittee, which had served as a staunch defender of the Budget Bureau during the war, attached the legislation as a rider to an Appropriations Bill, guided it through simply as an economy measure and in its Report gave official sanction to the doctrine that appropriations are not mandatory.

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.

The reasons for this state of affairs relate once again to Congress' desire for economy and also to the manner in which it has approached the issue. Many Congressmen are so wedded to the goal of economy that they are in fact willing to permit the Budget Bureau to exercise broad authority to effect savings even though this involves power to impair or even negate Congressional programs. Such men, rightly or wrongly, despair of Congress' ability to discipline itself and they are therefore willing to accept discipline from without. In addition, Congressmen have overly particularized the issue. In recent decades, as in the past, the issue of impoundment tends only to be raised when and to the degree that particular Congressmen object to particular impoundments. This pattern of action, however, transforms what is essentially an issue of grave and general institutional import into an issue of whose ox is being gored. The result is to put opposition to impoundment at a grave disadvantage since it tends to make all opponents of the policy or program involved in a specific dispute passive or active allies of the Budget Bureau. Congress, thus, must rise above subjective or political objections to impoundment, must truly become concerned about impoundment as a broad institutional issue, to generate sufficient interest and support for exploring

and adopting some reasonable alternatives to present practice. In the absence of such concern, Congress' desire for economy and the difficulty of the problem will continue to obstruct action to restore Congress' prerogatives and, indeed, will probably allow even further aggrandizement by the executive.

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 which have varied over time and that the executive is still not entirely sure of its grounds.

The initial executive case for withholding was, of course, put 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 sayings 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. There was no suggestion or inti. mation that impoundment could be used to control the level of program implementation or the achievement or execution of programs per se. Indeed, Dawes took great pains to reject the notion that the Budget Bureau could exercise its powers in ways that determined policy. Note the following three quotations drawn from his book on the first year of the Budget Bureau :

"The Budget bureau has no control of policy and is concerned simply with economy and efficiency in the routine business of government."

"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."

"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."

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. Note the following two quotations drawn from the same source :

"this system of preparing the Budget will confine the attention of the Executive, of Congress, and of the public to the one great important question, to wit, the relation of the money actually to be spent by the government to the money actually to be received ... This will enable Congress, with more intelligence, to determine at any time both the necessity for retrenchment and the ability of the government to engage in additional projects to be initiated by Congress outside of the budgetary provisions."

"the integrity of the Budget is not assailed by reductions incident to a determination of a change in legislative policy on the part of Congress after the submission of the Budget. As for increases over the figures of the Budget, insofar as its recommendations concern the carrying on of routine processes, I do not feel that we are in danger ... The real danger is of legislative appropriations outside of budgetary provisions, in connection with new governmental activities and projects, with which situation you and you alone are in position to deal."

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 1920's and 1930's. 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. Thus, Williams notes that one senior Budget Bureau official, in responding to an internal request for his opinion, replied that the savings doctrine might be stretched to include cases where changed conditions subsequent to the appropriation altered a situation so that the full appropriation for a program could no longer be efficiently spend, but added that "stopping specific projects went far beyond general economy and efficiency” and “was approaching an item veto.” Another senior official told Williams that,

"There was unanimous opinion in the Bureau that no statutory authority existed for impounding funds under continuing' appropriations for specific projects as distinguished from annual appropriations for maintenance and operation of government agencies where apportionment was required under the Anti-Deficiency of 1906."

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, despite the changes in circumstances and effect.

Accordingly, in a letter to Senator Russell, drafted for him by the Budget Bureau, President Roosevelt replied to Congressional criticism over impoundment as follows:

"I cannot believe that you or Congress as a whole would take exception to either of these purposes [to prevent deficiencies and save money] which are common to sound business management everywhere. In other words, the mere fact that Congress, by the appropriations process, has made available specified sums for various programs and functions of the Government is not a mandate that such funds must be fully expended. Such a premise would take from the Chief Executive every incentive for good management and the practice of common sense economy. This is particularly true in times of rapid change in general economic conditions and with respect to programs and activities in which exact standards or levels of operation are not and cannot well be prescribed by statute."

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 impeachment 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 non-fulfillment of program objectives stated in law, e.g., withholding when changed conditions made full implementation within a particular budget year uneconomic or inefficient.

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 developInents 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 understood to include.

It is not surprising that this is the case given the great success the executive has enjoyed since the mid-1950's in expanding the number and scope of particular impoundments. Indeed, this success has been so great that the executive has been encouraged to extend its claims to power or authority in a novel and striking manner. It thus has begun in recent years to justify the withholding of funds by asserting that the President has inherent, and by implication entirely self-sufficient and even unlimitable, power to impound under the clauses of the Constitution that vest executive power in him. Note. for example, the following words of the Dey.uty Director of the Office of Management and Budget, Caspar W. Weinberger, before another Senate subcommittee just a few weeks ago :

"In addition to the specific statutory authority provided by the Antideficiency Act, authority for the President to establish reserves is derived basically from the Constitutional provisions (Article II, section 1) which vest the Executive power in the President. In addition to the President's general responsibility as Chief Executive there may be involved his specific functions as Commanderin-Chief, his responsibilities with respect to the conduct of foreign affairs. and the requirement that he 'take care that the laws be faithfully executed.'"

Ironically enough, however, despite the enormous inflation of executive claims, it still remains at least somewhat unsure of its grounds. We may note, for example, that Deputy Director Weinberger, when testifying a few weeks ago, could not rest content with citing inherent power as a ground of authority, even though he supplemented it by citing the doctrine that appropriations are not mandatory and the statutory authority provided by Section 1211. Despite the ample justification these claims provide for the recent impoundment actions of the Nixon Administration if they are in fact correct, he went on to cite the need to manage expenditures so as not to exceed the debt ceiling, the possibility that existing expenditure limitations or ones established in the future by Congress might be exceeded, and finally even the Employment Act of 1946 which makes it federal policy "to promote maximum employment. protection, and purchasing power." All this may be good legal strategy, but the very addition of such a potpourri of highly tenuous justifications strongly suggest some continuing uncertainty regarding the strength of the executive's basic or primary grounds.

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. Thus, for example, during the fight over HEW Appropriations for fiscal 1970 the Washington Post noted that the "conventional view is that, as one senator put it a few months ago in a similar squabble, 'no power on God's earth can force the President of the United States to spend that money if he doesn't want to.'” If this was the "conventional view" in 1969, it was neither true to history nor correct. It is tantamount to the proposition that no one can force the President to execute or obey the laws.

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 paticular 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

« PreviousContinue »