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only the proposition that expenditures may be reduced below appropriations where that may be accomplished by efficiency of operations, not that the executive is free to decline to expend funds in order to curtail or omit a service or function for which Congress has made provision.

As will appear in the next section, another portion of this same report made clear that Congress did not acquiesce in the assertion of executive power to disregard the mandate of Congress with respect to the functions to be performed. Nor do the cases cited sustain the broad proposition for which they were cited.

The statement of Senator Harry S. Truman which was quoted in part by the Acting Attorney General was addressed to an amendment proposed by Senator Kenneth McKellar, of Tennessee, to the First Supplemental National Defense Appropriations Act for the fiscal year ending June 30, 1944, which read as follows (89 Congressional Record 10358 (1943));

"Sec. 305. No part of any funds appropriated for the War or Navy Department, when it is found by the head of such Department that any part of such funds is not necessary for the completion of the purpose for which appropriated, shall be used for any other purpose without the specific approval of law by the Congress; and, notwithstanding any other provision of law providing for transfer of any part of such funds, when it is found by the head of such Department that such funds are not to be used for the purposes for which appropriated, such appropriations to that extent shall be rescinded and canceled and the Secretary of such Department shall certify the amount so reduced, rescinded, and canceled to the Treasury Department, to the Speaker of the House of Representatives, and the President of the Senate: Provided, That no appropriation or part of any appropriation heretofore, herein, or hereafter made available for any executive department or independent establishment to construct any particular project shall be impounded, or held as a reserve, or used for any other purpose, except by direction of the Congress, and any part of such appropriation not needed to complete such project, or the part thereof for which appropriation has been made, shall be retained by the Treasury : Provided further, That section 3 of the Military Appropriation Act, 1944, approved July 1, 1943, is hereby repealed."

Senator Truman opposed this amendment, saying (Id. at 10362-10363) :

"... When the Congress acts on one of the regular appropriation bills, it is passing on a program to finance activities over a year in the future. It is acting on a budget prepared over 18 months in advance of the end of the fiscal year concerned.

"Estimates for the annual budget are submitted to the Bureau of the Budget in September of each year. The programs proposed have generally been prepared in the field several months earlier. The funds involved are not available until the following July ; that is, about a year later. Exigencies may cause long delays before the actual projects can be placed under way. Should the review of the Senate in connection with the appropriation bill be the last consideration of the project until it is built? No sound business enterprise could be so dogmatically operated. Regardless of other considerations, a review of authorized programs must be maintained so that full advantage can be taken of all changes in circumstances.

"After funds are appropriated and control has temporarily left the hands of Congress, there are two principal changes which may take place in a program and which, it seems to me, call for action in the offices of the President rather than in the agency concerned. The first is a change in conditions which might require that the project priority be changed and the work deferred a short while, or even for an indefinite period. When this comes about, the Executive should set the funds aside for later use. The second is a change in conditions which might eliminate the need of a part or all of the program. When such a condition comes about, a saving should be effected, and this can best be accomplished by the office of an objective reviewer detached from the agency concerned.

"In Government this review and control should be made in the office of the Chief Executive because that Executive is not properly performing his job if he permits the agencies to execute a program no longer needed even though it has been authorized. Lacking a legislative termination of the work, who but the Chief Executive can determine that the work is no longer needed at that time in the over-all program?

"Particularly in times like these when the picture of our Federal program changes in detail almost every week, it is a matter of good judgment that some agency in Government keep a control of the fiscal changes which the new conditions require. What looks like a good program one day may be completely unnecessary 6 months later. We know it is contrary to human nature for an individual himself to determine that his good idea has outlived its usefulness before it has been actually effected. It is the same with Government agencies. They are generally reluctant to curtail their programs as rapidly as changing conditions might warrant. Consequently, some agency in Government should keep on top of the programs so that only those expenditures essential to Gov. ernment are made.

"When the Congress appropriates funds it gives the executive branch an authority to incur obligations. Certainly none of us hold that we give a mandate to expend the funds appropriated. We expect the funds to be used only where needed, and not in excess of the amount appropriated, to carry out some phase of law.

"... An argument as to prerogative is out of place at this time. Whether it be by the legislative or the executive branch, we need more effective management to accomplish economies in government. The machinery of the Bureau of the Budget establishment of reserves has been available since 1921. From a practical standpoint, this is not the time to abandon the existing procedure for establishing economies and savings to set up a new scheme. Rather, if anything need be done at this time, let us follow the recommendation of the Committee on Reduction of Nonessential Federal Expenditures and strengthen the control now available."

The amendment was adopted by the Senate, id. at 10419, but was deleted before final passage of the bill. 57 Stat. 611, 642.

The Acting Attorney General also cited the following provision from the Rural Post Roads Act of 1943, 57 Stat. 560:

"No part of any appropriation authorized in this Act shall be impounded or withheld from obligation or expenditure by any agency or official, unless the War Production Board shall certify that the use of critical materials for additional highway construction would impede the conduct of the war.”

He argued that this was a recognition by Congress that authorizing legislation does not compel the executive department to obligate or to expend highway funds. In view of the legislative comment cited above, it may be that this simply reflected uncertainty as to the power to apportion reserves under the Antideficiency Act.

When impoundment of funds involves the curtailment or omission of a function or project, the question arises whether Congress has indicated an intent that a specific function be performed, or that a given service be performed at a specific magnitude. Those who defend executive discretion in this type of case rely on the language of authorization ordinarily used in appropriation bills. This, however, is only part of the story. Where Congress, by substantive legislation, directs that a certain thing be done, and subsequently, by an appropriation bill, provides the funds for doing it, it can be argued that, taken together, the two measures constitute a mandate to spend so much of the appropriation as is necessary to give effect to the substantive law.

A variation of the argument concerning the permissive character of appropriations has been made with respect to those made on a no-year basis. The Director of the Bureau of the Budget has defended delay in the apportionment of such funds as an exercise of discretion contemplated by this form of appropriation. Hearings before the House Committee on Appropriations on The Budget for 1960, 86th Congress, first session, 39 (1959).

IV. CONSTITUTIONAL POWER OF PRESIDENT TO IMPOUND FUNDS A. Introduction

The claim of inherent constitutional authority of the Chief Executive to impound appropriated funds has two aspects: (1) Whether, under his constitutional duty to take care that the laws be faithfully executed, it is his prerogative to decide whether funds shall be spent where Congress has left the matter to the discretion of someone in the Executive Department; and (2) Whether he has any inherent constitutional authority to impound funds when Congress has, by lat "equired that they be expended for a stated object.

B. Impounding of permissive appropriations

In response to a protest against the impoundment of funds for the Farm Marketing Administration in 1942, President Roosevelt defended the action on the ground that the appropriation was permissive and that discretion as to whether the expenditure should be made was vested in him as Chief Executive. In a letter dated August 18, 1942, to Senator Richard Russell, of Georgia, he wrote (Hearings before a Subcommittee of the Senate Appropriations Committee on the First Supplemental National Defense Appropriation Bill for 1944, 78th Congress, first session, 739 (1943):

“It should, of course, be clearly understood that what you refer to as the practice of the Bureau [of the Budget) of impounding funds duly appropriated by the Congress' is in fact action by the Chief Executive, and has two purposes. The first purpose is compliance with the Anti-Deficiency Act, which requires that appropriated funds be so apportioned over the fiscal year as to insure against deficiency spending. This step, of itself, has for many years resulted, and will continue to result in important savings of appropriated funds. Secondly, the apportionment procedure is used as a positive means of reducing expenditures and saving money wherever and whenever such savings appear possible.

“While our statutory system of fund apportionment is not a substitute for item or blanket veto power, and should not be used to set aside or nullify the expressed will of Congress, I cannot believe that you or Congress as a whole would take exception to either of these purposes which are common to sound business management everywhere. In other words, the mere fact that Congress, by the appropriation process, has made available specified sums for the 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 commonsense 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 operations are not and cannot well be prescribed by statute."

There has been little dispute as to the power of the President to make the decision as to whether or not funds shall be spent, if it is clear that Congress intended the appropriation to be permissive. C. Impoundment of appropriations intended by Congress to be mandatory

In 1949, Congress appropriated funds for a 58-group air force, over the opposition of the administration, which had requested funds for a 48-group force. At the time he signed the bill President Truman issued a statement expressing his objection to the increased funds appropriated for the Air Force and directing the Secretary of Defense "to place in reserve the amounts provided by the Congress in H.R. 4146 for increasing the structure of the Air Force."

When the Secretary of Defense was questioned about the authority for this directive by members of the House Committee on Appropriations, Hearings before the Subcommittee of the House Committee on Appropriations on Department of Defense Appropriations for 1951, 81st Congress, second session 61 (1950), he took the position that

"I think his powers are inherently constitutional both as Chief Executive and Commander in Chief. The Budget and Accounting Act or the Apportionment Act which Colonel Moore mentioned, may be pertinent. Similarly, the war powers may have some bearing, but I am not sure of this at the moment. But whatever is provided in any statute, in my opinion, the source of the President's power is in the Constitution."

In reporting this appropriation, House Report No. 1797, 81st Congress, second session 310 (1950) the Committee challenged the action of the President, saying:

“In signing the National Military Establishment Appropriation Act, 1950, the President issued a statement indicating objections to the action of the Congress in increasing funds for the Air Force and directing

* * * * the Secretary of Defense to place in reserve the amounts provided by the Congress in H.R. 4146 for increasing the structure of the Air Force, which amounted to an item veto, a power not possessed by the President."

"Under article I, section 8, of the Constitution of the United States, the following is provided :

The Congress shall have the power *** to declare war * * * to raise and support armies * * * to provide and maintain a Navy * * * "It is evident that the Congress is given the responsibility of providing for the national defense.

"On the question of increasing the Air Force program from 48 groups to 58 groups, there was much debate and consideration in the Congress over a period of months prior to the adoption of the 58-group program. In other words, the bill which was passed by the Congress and approved by the President embraced the 58-group program, but the impounding of funds by the President reduced the program from a 58-group program to a 48-group program. A major question of policy was determined by the Congress, and funds were provided to implement the policy but the will of Congress was circumvented.

"It is perfectly justifiable and proper for all possible economies to be effected and savings to be made, but there is no warrant or justification for the thwarting of a major policy of Congress by the impounding of funds. If this principle of thwarting the will of Congress by the impounding of funds should be accepted as correct, then Congress would be totally incapable of carrying out its constitutional mandate of providing for the defense of the Nation.”

This was the same report from which the Acting Attorney General quoted excerpts in his letter to the Secretary of Transportation, supra.

Subsequent impoundments have elicited similar criticism by Members of Congress, coupled with the assertion of the constitutional responsibility and authority of Congress. For example, in 1959, the Preparedness Investigating Subcommittee of the Senate Armed Services Committee held hearings in which, inter alia, it inquired into the failure to use funds appropriated for certain purposes, such as support of the Marine Corps at a given strength, and construction of Polaris submarines. Hearings before the Preparedness Investigating Subeommittee of the Senate Armed Services Committee on Major Defense Matters, 86th Congress, first session, 147–148 (1959). During the course of these hearings Senator Lyndon Johnson of Texas had this to say:

"Senator Johnson. Do you have a centralized control in this country? Do we no longer have a coequal branch of government? I had the thought that we have a constitutional responsibility to raise an army. I had the thought that we had a responsibility to appropriate funds. I had the thought that once the Congress passed the appropriation bill and the President approved it and signed and said to the country that “This has my approval" that the money would be used instead of sacked up and put down in the basement somewhere.

"Senator Johnson. And we haven't even gotten to it yet. The House has not even acted on it yet and I hope when we do get it that the Joint Chiefs, the Commander in Chief, the Secretary of Defense that reorganized the Department will give some consideration to our viewpoints in the matter, because I think if they don't agree with us they ought to veto the bill.

"You hear a lot about vetoing, but once the President signs the appropriation bills and gives approval to them and says to the American people "Yes, you have provided for a certain number of troops and we are going to approve it"-then I think you ought to carry out the programs for which the funds were provided. I don't think you ought to, in 1 month, slip out this, in another month slip out something else until you whittle and whittle and whittle away, so that you finally have less men or less equipment than the military people think they need.

Another sharp dispute over the constitutional power of the President to impound appropriations arose in 1962. The House Armed Services Committee reported the bill to authorize appropriations for the fiscal year 1963 for aircraft, missiles, and naval vessels, with an amendment by which the Secretary of the Air Force was "directed to utilize authorization in an amount not less than $491,000,000 during Fiscal Year 1963 to proceed with production planning and long leadtime procurement for an RS-70 weapon system." House Report No. 1406, 87th Congress, second session 1 (1962). The reason for "directing" this expenditure was explained as follows, at pages 5-7:

"First, it might be well to review the recent history of congressional actions which were disregarded by the executive branch. The larger and more dramatie of these, such as the cancellation of the Forrestal carrier in 1950 and the impoundment of $615 million for the purchase of airplanes in 1949, are now a part of history. Since that time, and in only the very recent past, we see these congressional actions failing through nonobservance by the executive,

Millions of dollars

46. 4

"1956: Increase in Marine Corps personnel strength..------
1959:

Increased Army modernization....
Speeding work on Regulus submarines. -
Increase in Hound Dog missiles program.
Increase in Minuteman program.------
Additional KC-135 tankers.----

Additional strategic airlift aircraft.---1960:

Maintaining Marine Corps strength at 200,000..
Nike-Zeus procurement.----
Advance procurement for nuclear-powered car..

National Guard construction.-1961:

Additional fighter aircraft for air defense..
Army Reserve construction.----

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“Does the enactment of laws by the Congress which provide direction to the course of our defense restrict it to the passive role of supine acquiescence in programs handed to it by the Department of Defense? If this is so, then let it be known that this is the true role and function of the Congress. But if the Constitution means that Congress is to be an active participant in the determination of the direction of our defense policy, then let this be rendered similarly clear.

“The committee finds it hard to believe that its extended and infinitely detailed hearings are designed only as an exercise in self-improvement in the area of knowledge. For knowledge is something to be used, not merely to be possessed. Congress is not a bank which can grant or refuse a loan. The committee submits that it can also make its own investments.

"To any student of government, it is eminently clear that the role of the Congress in determining national policy, defense or otherwise, has deteriorated over the years. More and more the role of the Congress has come to be that of a sometimes querulous but essentially kindly uncle who complains while furiously puffing on his pipe but who finally, as everyone expects, gives in and hands over the allowance, grants the permission, or raises his hand in blessing, and then returns to his rocking chair for another year of somnolence broken only by an occasional anxious glance down the avenue and a muttered doubt as to whether he had done the right thing.

"Perhaps this is the time, and the RS-70 the occasion, to reverse this trend. Perhaps this is the time to reexamine the role and function of Congress and discover whether it is playing the part that the Founding Fathers ordained that it should.

The Administration strenuously opposed this direction. President Kennedy addressed a letter, dated March 20, 1962, to Representative Carl Vinson of the House Armed Services Committee, 108 Congressional Record 4694 (1962) in which he wrote:

"Dear Mr. Chairman: With the profoundest respect for your leadership in national defense and congressional affairs, I must take this opportunity to urge your reconsideration of the language added by your committee to H.R. 9751. The amendment to which I refer states that the Secretary of the Air Force is "directed" to utilize not less than $491 million of this authorization (fiscal year 1963 funds for aircraft, missiles and naval vessels) to proceed with production planning and long leadtime procurement for an RS-70 weapons system. I would respectfully suggest that, in place of the word “directed," the word "authorized" would be more suitable to an authorizing bill (which is not an appropriation of funds) and more clearly in line with the spirit of the Constitution.

"Each branch of the Government has a responsibility to "preserve, protect and defend” the Constitution and the clear separation of legislative and executive powers it requires. I must, therefore, insist upon the full powers and discretions essential to the faithful execution of my responsibilities as President and Commander in Chief, under article II, sections 2 and 3, of the Constitution.

“Additionally implicit in the Constitution, of course, is the intent that a spirit of comity govern relations between the executive and legislative. And while this makes unwise if not impossible any legislative effort to "direct" the

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