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pounded. I cannot remember whether it was for a year or-it seems to me it was just put over for a year. The action of President Franklin Roosevelt during the Second World War of impounding funds for basically civilian projects for the duration of the World War is well known and I think is known by most scholars. I think almost every President since that time Presidents Truman, Eisenhower, Kennedy, Johnson, and Nixon—have engaged in some form of impoundment when they thought it was justified under all the circumstances.
The question is, When is it justified, when is it permissible to do it? You start with the intent of Congress and I think it is generally conceded that language of authorization in an authorization bill without more is not mandatory. Representative Cannon, who certainly was an authority on that subject, so indicated during the 1963 debates on the defense appropriation.
Then if you go on to the language of appropriation bills without more, I think the general view there is that the language of these bills is only permissive as setting a ceiling and not mandatory standing by itself.
Ramsey Clark, when he was Attorney General, had occasion to consider this general subject in an opinion on the permissibility of impounding Federal highway funds, and after a rather careful analysis along these general lines, concluded that it was consistent with the intent of Congress under the circumstances presented there to impound the funds.
But this, I think, is not the kind of question that presents difficulty. The question is where either Congress is not clear in the intent with which it writes a statute, or in the case where that Congress is crystal clear-take the language that Congressman Vinson from Georgia sought to introduce into the military appropriations bill for fiscal 1963, that the Defense Department, in effect, is directed, mandated—and uses all the mandatory words possible. Surely in the latter case there is no question as to what the intent of Congress is. Then the question becomes one of whether, given a mandatory intent on the part of Congress, the Executive has a right to impound.
In the question of trying to find a mandatory intent on the part of Congress, it is not a question of looking for the word "shall” as opposed to "may.” Our office, in the memo that was published in the Congressional Record in December 1969, concluded that in providing for certain formula grants for schools—I think it was impacted aid, but I am not sure-Congress had indicated that these were to be spent, not necessarily because it said they shall be spent, but just from taking the overall language of the authorization bill, the enabling statute if there was one in the particular appropriations language, and construing them together to try to find on a reasonable basis what intent Congress manifested.
Well, when it comes to the action of the Executive in these situations, I take it that it is conceded that the President, as I believe Mr. Weinberger suggested yesterday, must consider all the laws in determining whether or not spending is mandated in a particular case. That is not to say that Congress could not pass a law saying notwithstanding the provisions of any other law. I think that is the way that the Arizona Legislature used to draft at least half its laws.
I do not think it is a happy form of draftsmanship, but presumably, Congress could, if it wanted to, exempt from the provisions of all other laws a particular appropriation. I think many would feel that was not a wise action, but there is no doubt of Congress' power to do it. But in the absence of language of that sort, you have the provisions of the Anti-deficiency Act, the provisions of the Debt Ceiling Act, and, conceivably, other laws likewise would be relevant in trying to determine from all the circumstances what was the intent of Congress with respect to this particular piece of appropriations legislation.
If, on the basis of consideration of all the laws, the conclusion is that the intent of Congress was to mandate the spending, then our office has taken the position, in the memorandum I previously referred to, that the President is not at liberty to impound in the case of domestic affairs which have no national defense or foreign policy considerations. This is not the position of the Department of Justice. The Department of Justice, through the Attorney General, has taken no position on the matter and it is not the position of the administration. I think the administration, as such, as an institution, has not taken any position on the matter. But that, nonetheless, was and is the position of our office under the particular circumstances there.
But if one gets into the area of national defense spending, I think from the debates in the fiscal 1963 Military Appropriations Act, it is clear that more than one senator expressed the view that the President had authority in the area of national defense, by virtue of his constitutional standing as Commander in Chief, which might permit him to withhold in that area where he could not have in the strictly domestic area. In fact, I would go further and say that certainly Members of Congress from time to time have taken the view that Congress can't force the President to spend money of any sort. Congressman Laird, before he became Secretary of Defense, and Congressman Flood from Pennsylvania, during debates in Congress in October of 1968, both expressed that view.
So when I say the Office of Legal Counsel has taken the position that the President must spend in the domestic area when it is clearly mandated that he do so, I recognize that there are views to the contrary and that this is not an easy question or one that admits of no argument on the other side.
In the foreign affairs field, also, there is probably an exception, though it is not anything one would want to opine on until he had a problem before him. But given the foreign affairs power of the President and a case like the Curtiss Wright case, which certainly indicates that the President's power in that area is quite different from the domestic field, I think a different conclusion could well be reached.
I think that Thomas Jefferson, when he was President, objected to Congress appropriating money to pay specific salaries to his ambassadors. His view was that Congress, under the doctrine of separation of powers, ought to appropriate a lump sum for the payment of ambassadors and he would decide who got what. That battle was never renewed, so far as I know, and I think it was resolved in favor of congressional specification. But it is some indication of the fact that people right there at the founding of the country, someone like
Jefferson, felt that foreign affairs powers were quite different than the power of the President in domestic affairs.
I think that is probably as much as I can usefully contribute by way of expression of my own observations on the subject. I would be more than happy to try to answer any questions that you have, Mr. Chairman, or other members of the panel or the Senate have.
Senator ERVIN. Is this not a problem that becomes acute on account of two factors? The first is that Congress has to make appropriations in advance, and oftentimes, conditions change from the time the appropriation is made and the time comes for the carrying out of the project. Mr. REHNQUIST. I think that is correct.
Senator Ervin. And another thing is that our Constitution does not recognize an item veto and it compels the President to sign an entire bill, including specific appropriations which he thinks are unwise, and Congress has to pass the thing over entirely, over his veto or the veto stands.
Mr. REHNQUIST. Certainly, if he had an item veto power, I suspect impoundment would not be the issue that it is.
Senator ERVIN. As our country becomes more complex, the more items, specific items, we have in each appropriation bill. Mr. REHNQUIST. No doubt about it.
Senator ERVIN. So we have an appropriation bill that very often may carry hundreds of items and the President may feel that a limited number of the appropriations are unwise for one reason or another and he is confronted with the fact that he has to veto the entire bill or sign the entire bill into law. So impoundment has occurred, I think we all recognize. Certain lawmakers like myself think we ought to have balanced budgets and that Congress ought to have enough-well, I will put it plainly—honesty not to appropriate more money than it needs for the purpose and ought to have enough courage to levy enough taxes to cover the appropriations it makes. But there is a suggestion that was made here yesterday by Professor Maass, which seems to me to provide a way out of this state of uncertainty, which I will mention in a minute. Of course, the Congress has recognized by the Anti-deficiency Act that there are times when it is wise for the President to have and exercise the power of impoundment, is it not?
Mr. REHNQUIST. Yes. Certainly, the act passed in 1951 recognized that.
Senator ERVIN. In other words, that act expressly provides that the President should have the power to set up reserves out of an appropriation for contingencies.
It also provides that the President can impound when and where, for the purpose of effecting savings, a change in requirements would enable the carrying out of the project with an expenditure of less than the amount of the appropriation. And also, that he can impound funds where there has been a change or, rather, new development, since the appropriation was made. So Congress has recognized that it is a part of wisdom under certain circumstances to impound money?
Mr. REHNQUIST. Yes, those are all, I guess, in the Anti-deficiency Act.
Senator ERVIN. Yes. And we have had a good many illustrations of that. I think one which illustrates this point of where new developments have arisen since the appropriation was made during President Truman's administration, where Congress had appropriated a considerable amount of money for the building of veterans hospitals and military hospitals. Then the war came to an end and the anticipation on which Congress made the appropriation that there would be many more wounded American soldiers to be taken care of had come to an end. So President Truman impounded those funds, which I think all of us recognized was the sensible thing under the circumstances. Those conditions do arise and always will arise, because appropriations are made long before the time for the expenditure of the money occurs and events may render the spending of that money appropriated unwise or inadvisable.
Now, you recognize the fact that Congress does have the ultimate power of the purse, generally speaking, and that Congress can make it clear that the expenditure of a specific appropriation for a specific purpose can be made mandatory, and in that case, that the President is obligated to carry out the project.
Mr. REHNQUIST. In the area of domestic affairs, yes. Our office has taken that position.
Senator ERVIN. I mentioned the fact about the suggestion made to the subcommittee, which seems to me was a way to get the same purpose as an item veto. We do now in a way get an item veto, in practical effect, where money appropriated is impounded and there is no change in that situation for Congress to override the veto. It was suggested here yesterday that Congress could, under the Constitution, adopt a general law on the subject and provide that when the President impounds money appropriated for a specific purpose, he should notify Congress of his purpose. Then Congress could reject his impoundment or approve it. I see nothing in the Constitution which would militate against the adoption of an act of that nature. At the same time, it would give the President in effect an item veto, subject to be overridden by the Congress, and it would avoid confrontations which occur from time to time in all administrations between members of the Congress and the President with respect to funds impounded.
The subcommittee would appreciate it if the Department of Justice would give consideration to legislation of that kind and give us their opinion as to the wisdom of it and the constitutionality of it.
Mr. REHNQUIST. Well, certainly, we would be happy to make that sort of an inquiry and I think could not help but be sympathetic on the purpose. I think the Department has traditionally been skeptical of the kind of three-legged and one-armed creatures that emerge from congressional veto and, you know, something that is a departure from the normal legislative process. But I certainly have not ħad any opportunity to reflect on the suggestion that you make and perhaps that would not be subject to the same objections as other types of things that sound like it.
Senator ERVIN. It is still a somewhat nebulous proposal and needs some concrete work. I can understand why the Department would not wish to take any position with respect to any legislation unless proposed legislation is first reduced to writing. Because it is hard enough, sometimes, to understand the proposed legislation after it is reduced to writing and it is totally impossible to do it when it is not reduced to writing
Do you have some questions?
I would like to join in welcoming Mr. Rehnquist. Just for the record, I am wondering if he would clarify whether he is speaking just for the Justice Department or more broadly, for the executive branch?
Mr. REHNQUIST. Senator Mathias, I am not even speaking for the Justice Department. I was asked by the chairman to appear and, of course, I am happy to appear. The Justice Department, as such, has not taken a position on the legal questions that arise out of this. Our office has taken a position on one of them.
Senator MATHIAS. As I understand the thrust of your testimony, you are saying these cases of impoundment have arisen because of contradictory directions on the part of the Congress, perhaps even inattention on the part of the Congress. Mr. REHNQUIST. I think that is a very fair statement.
Senator MATHIAS. What is your view of a President, without the cloak of any contradictory direction on the part of Congress, who, simply as a matter of policy, impounds funds?
Mr. REHNQUIST. Senator, my own position in the area of domestic affairs, where the congressional intent is clear, is that the President does have an obligation to see that those mandatory expenditures are made.
Senator MATHIAS. One final question. Would you feel that there was any justification for impoundment in the case of the general revenue sharing program which has been proposed by the President, which I cosponsored ?
Mr. REHNQUIST. Well, to say is there any justification for it, I would have to recognize, I think, that others have taken a different view than I have as to whether the President, even where the intent of Congress is clear, may impound funds. To me, the point is a difficult and debatable one.
Following my line of analysis that was made in a memorandum that was published in December, 1969, I would think that revenue sharing legislation could be drafted to make it clear that it is a formula type grant where Congress intends and directs that it be expended.
Senator MATHIAS. I may ask your help in making sure that we can get that kind of amendment. I think it is an essential feature of revenue sharing if Congress is not to pronounce its own funeral oration in the process.
Thank you, Mr. Chairman.
Senator GURNEY. I have only one general question, Mr. Rehnquist. I am sorry I was not here to hear the first part of your testimory.
Do you not think it would be a useful thing if both the Congress and the executive branch of the Government came to grips with this problem and tried to iron out some rules so that this confrontation could be avoided, at least in some measure?