he took to achieve this objective was to alter the manner in which the provisions of the Anti-Deficiency Act were interpreted and implemented. This Act required that funds appropriated to departments or agencies be so apportioned by monthly or other allotments as to prevent expenditure at a rate that would exceed the total amount appropriated for the fiscal year. Dawes proclaimed that the amount appropriated was not necessarily the amount to be expended, that appropriations were not mandatory. Rather, he asserted that the procedures of apportionment or allotment should be used to make provision for "savings" as well as for preventing deficiencies and with the help of the President he created machinery under which a reserve fund was established. Thus, due to Dawes' efforts, at the beginning of the fiscal year departments and agencies not only apportioned their funds so to to avoid deficiencies but informed the Bureau of the Budget of the portion of money appropriated to them that they expected to be able to save. These funds were then set up as a reserve that could not be expended except upon the authorization of the head of the department or establishment.

However, if Dawes believed that appropriations were not mandatory, neither he nor his contemporaries in the Harding Administration understood that proposition as the President or Budget Bureau does today. All that Dawes meant was that an agency did not have to spend the full amount of an appropriation if it could accomplish its program objectives while spending less. and he fully expected most agencies to be able to effect savings through more efficient operation. In contrast to current executive views, the notion that a departmental head or the President could control the level or the actual execution of a program by setting aside appropriated funds was not contemplated or envisioned by Dawes or other high government officials in the early 1920's. This is clearly indicated by Dawes' comments and analysis in his book, The First Year of the Budget of the United States. Moreover, an interesting test case occurred in 1923 that further substantiates this claim. In early 1923 the House increased the President's request for Rivers and Harbors funds, inIcluded in an Army Appropriations Bill, from $37 million to $56 million. The President was furious. He let it be known that he might veto the bill or even simply refuse to spend the extra money. The Senate, however, was unyielding. It passed the entire $56 million and refused to believe that the President would veto a general Army Appropriations Bill or seek to frustrate clear Congressional will by withholding funds. And the Senate was quite right. Despite threats and complaints to newspaper reporters, Harding signed the bill and none of the extra $29 million was withheld.

The next stage began in the early 1930's. Though Dawes did not understand the notion that appropriations are not mandatory or the notion that money might be withheld to effect "savings" as the Budget Bureau does today, these notions were inherently very elastic. By the early 1930's, under the pressure of the depression, they began to be interpreted more expansively. Thus, in 1931 President Hoover used the procedures for establishing an annual budget reserve to effect an overall 10% cut in expenditures. Letters were sent out by the Bureau of the Budget directing the departments to cut their proposed expenditures for fiscal 1932 by 10% and to set up this amount in a reserve which could not be used without the approval of the President. In short. Hoover began to use the power to withhold to effect savings by controlling the tempo or rate of program implementation. Given the conditions of the times and the shortness of institutional memory, this step was not questioned. It soon led, however, to general and uncritical acceptance of the notion that the tempo of program implementation, that the level of programs, might be controlled for the purpose of effecting savings through withholding funds. By the mid-1930's the President and Budget Bureau were effecting savings by controlling the tempo or rate of program implementation not merely in general or overall terms, but with reference to specific programs-for example, by providing only for an Army of 147,000 men in 1935-1936 though Congress had appropriated for one of 165,000 men.

One other set of developments occurred in the 1930's that was critical both to the growth of the scope of withholding in the 1930's and to further growth in subsequent decades. Until 1933 total control over the making of allotments or apportionments rested with the department or agency heads. The Bureau of the Budget could pressure and exhort, but it could not direct or command the apportionment or allotment of funds. On June 10, 1933, however, the

President by executive order gave the Budget Bureau the function of “making, waiving, and modifying apportionments of appropriations." In 1939 the Bureau was removed from the Treasury and placed in the newly created Executive Office of the President. In 1940 Budget Bureau control was further strengthened. By executive order spending agencies were now required to gain Budget Bureau approval for apportionments rather than merely being subject to its review. Revisions similarly had to be submitted for approval. These steps established centralized control in apportionment and provided a key foundation for expansion of the withholding power.

The third stage began in the early 1940's. By this time control of the tempo or rate of program implementation by withholding funds had been established in practice as had centralized control of apportionment by the President through the Budget Bureau. The next step was to move to effect savings not simply by controlling the tempo or rate of program implementation, but by controlling the achievement or execution of particular programs per se.

Thus, beginning in 1941 President Roosevelt announced that he would not allocate funds for any water resource project that did not have an important national defense value. In short, though again the differences are relative, he moved from shrinking entire programs to eliminating portions of programs at his own discretion. He and the Budget Bureau justified his new policy on the basis of the old doctrine that appropriations were not mandatory and the claim that the war emergency made it crucial to effect savings on non-essential items. Nonetheless, as might be expected, this expansion in the scope of withholding led to a bitter and continuing battle with Congress throughout the whole course of the war. The Budget Bureau did not cease to withhold funds for a variety of projects, but it came under constant attack in Congress and on several occasions was forced to beat a hasty retreat.

At the war's end use of withholding or impounding for a variety of purposes continued. In 1949, for example, the President impounded $615 million which Congress had added to his request for a 48-group Air Force. Even so, the Budget Bureau was troubled. It possessed no statutory authority even to establish reserves for the purposes Dawes contemplated let alone for denying Congress certain programs or projects it desired. Moreover, the controversy surrounding impounding during the 1940's focused attention on the question of executive authority. Thus, for example, in 1949 the Hoover Commission Task Force Report on Budgeting noted that "additional legislation is needed to sustain the Bureau's powers with regard both to apportionments and reserves."

Such legislation was passed in 1950 as Section 1211 of the General Appropriation Act of 1951. The language adopted closely followed language proposed by the Budget Bureau itself. It amended the Anti-Deficiency Act so as to provide that:

"In apportioning any appropriation, reserves may be established to provide for contingencies, or to effect savings whenever savings are made possible by or through changes in requirements, greater efficiency of operations, or other developments subsequent to the date on which such appropriation was made available. . . ."

This language was intended by Congress simply to authorize the Budget Bureau to impound to effect savings in cases where greater efficiency or changed conditions bearing on program implementation made such savings possible. It was clearly not intended to authorize the Budget Bureau to frustrate the legislative purposes of Congress. Indeed, interpreted strictly, this authority authorized no more than Dawes had claimed as a power of executive management-the power to effect savings where they could be made without interfering with program implementation. It is, thus, not surprising that the Budget Bureau itself was divided over the question of whether it had gained or lost ground as a result of the passage of this new legislation.

The final and current stage began in 1950 with the passage of Section 1211. Whatever the intent of Congress, the language was exceedingly broad. It can without a great deal of stretching be read to authorize control of the tempo or rate of program implementation in the interests of economy. Indeed, the same Act that included this new language provided for an overall cut of $550 million in nondefense spending to be accomplished through the apportionment procedure established in Section 1211. Moreover, the differences between con

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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 expenditures 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 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. There was no suggestion or intimation 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.