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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 alía, 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 Subcommittee 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 dramatic 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.

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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

Executive on matters within the latter's jurisdiction, it also makes it incumbent upon the Executive to give every possible consideration in such matters to the views of the Congress. For that reason, Secretary McNamara has indicated to you in a separate letter his willingness to reexamine the RS-70 program and related technological possibilities."

It will be noted that the President did not explicitly deny the power of Congress to direct the use of funds for the purpose stated, although he suggested that the point was doubtful. As one writer has noted, the fact that the administration made such a strenuous effort to have the word "directed" changed to "authorized" carried an implied recognition that the Executive would not have been free to ignore the mandate. Davis, Congressional Power to Require Defense Expenditures, 33 Fordham Law Review 39 (1964).

The House yielded to the Administration's request to delete the word "directed", so the constitutional issue was not put to the test. Twelve years earlier, the House Armed Services Committee had reported House Report No. 1715, 81st Congress, second session (1950), and the House had passed a bill authorizing the construction of modern naval vessels by which the President was "authorized and directed to undertake the construction of not to exceed 50,000 tons of modern naval vessels in the following categories . . . [and] convert not to exceed 200,000 tons of existing naval vessels. . . to modern naval vessels. .." No reference was made to the word "directed" in the House Report or in the debate on the floor of the House. As reported by the Senate Committee on Armed Services, Senate Report No. 1860, 81st Congress, second session, 1, 2 (1950) the word "directed" was deleted. The report explained

"The committee also took notice of a recommendation of the Secretary of the Navy that the bill be amended by deleting a direction to the President of the United States to carry out the terms of this bill. In view of the fact that this is merely an authorization and not an appropriations bill, the committee concurred in the Secretary's recommendation. It would be futile to direct the President to carry on a program unless the appropriation bill granting the necessary funds carried a similar direction."

The bill was passed with the Committee amendments without debate by the Senate. 96 Congressional Record 11022 (1950). The House concurred in the Senate amendment. Id. at 11380.

Early in 1942, shortly after controversy erupted over impoundments began late in 1941, President Roosevelt addressed a letter to Senator Arthur Vandenberg of Michigan, requesting Congress to take action to allow him to veto items in an appropriation bill. 88 Congressional Record 2153 (1942). If the President has inherent constitutional authority to impound appropriated funds, the item veto would be unnecessary.

The Courts have never had occasion to pass upon the authority of the Executive Department to spend funds appropriated for public purposes. A few cases involving private claims have been adjudicated. Two such cases, and two other cases involving restrictions on expenditures, were cited in the Acting Attorney General's letter of February 19, 1967, to the Secretary of Transportation, supra. These were Hukill v. United States, 16 Ct.Cl. 562, 565 (1880). Compagna v. United States, 26 Ct. Cl. 316 (1891); Lovett v. United States, 104 Ct. Cl. 557 (1945), affirmed on other grounds, 328 U.S. 303 (1946); and McKay v. Central Electric Power Corporation, 223 F.2d 623 (1955).

Hukill v. United States was a suit to recover for mail transportation services rendered before the Civil War. The Act which appropriated money to pay this claim stipulated that claims which had been paid by the Confederate Government should not be paid again. For want of evidence that this claim had not been paid by the Confederate Government, the suit was dismissed. The Court said, however:

"An appropriation by Congress of a given sum of money, for a named purpose. is not a designation of any particular pile of coin or roll of notes to be set aside and held for that purpose, and to be used for no other; but simply a legal authority to apply so much of any money in the Treasury to the indicated object.

"Every appropriation for the payment of a particular demand, or a class of demands, necessarily involves and includes the recognition by Congress of the legality and justice of each demand, and is equivalent to an express mandate to the Treasury officers to pay it."

In Compagna v. United States, the question to be decided was whether an appropriation for pay of musicians in the Marine Band at a certain rate was controlling in the face of a statute fixing their pay at a lower rate. After reviewing the legislative history, the Court found that it was not; with respect to the effect of the appropriation, the Court had this to say:

"An appropriation is per se nothing more than the legislative authorization prescribed by the Constitution that money may be paid out at the Treasury. Frequently there is coupled with an appropriation a legislative indication that the designated amount shall be paid to a person or class of persons, and from such an appropriation a statutory right arises upon which an action may be maintained. Occasionally an appropriation act goes still further, and expressly or by necessary implication changes preexisting law so as permanently to increase or diminish the compensation of an officer, agent, or employe of the Government."

The other two cases cited involved a totally different issue, i.e., whether the courts can require certain payments to be made despite evidence of a contrary legislative intent. In Lovett v. United States, the Court of Claims gave judgment for the salaries of three government employees despite an express provision in an appropriation act that no part of any available appropriation should be used to pay such salaries. The Court of Claims held that this restriction did not destroy the obligation of the Government and did not affect the decision of the Court of Claims. The Supreme Court held the restriction unconstitutional.

McKay v. Central Electric Power Corporation was a suit for a judgment directing the Secretary of the Interior and the Administrator of the Southwestern Power Administration not to refuse to perform a contract whose performance, by its terms, was contingent on appropriations made by Congress, on the ground that Congress had failed to make the necessary appropriations. Congress had made an appropriation broad enough to cover expenditures under the contract, but the Statement of the House Managers in the Conference Report stated explicitly that no part of the funds allowed were to be used for the purpose of implementing the contract in question.

The Court of Appeals for the District of Columbia held that the suit should be dismissed because

". . . The Act is permissive only. It does not impose upon appellants a clear affirmative duty to use the funds for that specific purpose. At least so much is essential to avert the doctrine of sovereign immunity as a bar to effective relief in the nature of mandamus or specific performance."

On the other hand, there are a few Supreme Court decisions declaring that acts of Congress directing payment of, or making appropriations for payment of, private claims are binding on the Executive Department. Kendall v. United States, 37 U.S. 524 (1838), was a suit for amounts claimed under contracts for carrying the mail entered into with the Postmaster General. After the succeeding Postmaster General had struck out various allowances and credits made to the contractors by his predecessor, Congress passed a law authorizing and directing the Solicitor of the Treasury to adjust these claims and directing the Postmaster General to credit the contractors with whatever sum the Solicitor should decide was due them. After the Solicitor made his decision, the Postmaster credited part, and refused to allow the remainder of the amount allowed by the Solicitor. The lower court issued a writ of mandamus ordering the Postmaster General to credit the full amount allowed by the Solicitor and the Supreme Court affirmed this order.

The Court rejected the argument that the proceeding constituted an infringement on the executive department of the government, saying

"The executive power is vested in a president; and so far as his powers are derived from the constitution, he is beyond the reach of any other department, except in the mode prescribed by the constitution through the impeaching nower. But it by no means follows, that every officer in every branch of that denartment is under the exclusive direction of the president. Such a principle, we apprehend, is not and certainly cannot be claimed by the president. There are certain political duties imposed upon many officers in the executive department, the discharge of which is under the direction of the president. But it would be an alarming doctrine, that Congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the constitution; and in such cases, the duty and responsibility

grow out of and are subject to the control of the law, and not to the direction of the president."

"It was urged at the bar, that the postmaster-general was alone subject to the direction and control of the president, with respect to the execution of the duty imposed upon him by this law; and this right of the president is claimed, as growing out of the obligation imposed upon him by the constitution, to take care that the laws be faithfully executed. This is a doctrine that cannot receive the sanction of this court. It would be vesting in the president a dispensing power, which has no countenance for its support, in any part of the constitution; and is asserting a principle, which, if carried out in its results, to all cases falling within it, would be clothing the president with a power entirely to control the legislation of congress, and paralyze the administration of justice.

"To contend, that the obligation imposed on the president to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible."

United States v. Price, 116 U.S. 43 (1885) and United States v. Louisville, 169 U.S. 249 (1898), held that when Congress makes an appropriation in terms which constitute a direction to pay a sum of money to a particular person, the officers of the Treasury cannot refuse to make the payment.

THE LIBRARY OF CONGRESS, LEGISLATIVE REFERENCE SERVICE, Washington, D.C., March 10, 1971.

To: Senate Subcommittee on Separation of Powers Attention: Senator Sam J. Ervin, Jr.

From: American Law Division.

Subject: Legislation to Require Spending of Appropriated Funds.

Congress can make the spending of appropriated funds mandatory in several ways. It can enact a general law requiring all appropriated funds to be spent promptly. It can stipulate that the amount appropriated for a specific purpose must be spent for that purpose. It can enact a law establishing a program and require that it be carried out to the extent of available appropriations.

In the 85th Congress, Second Session, companion bills which would have required the prompt expenditure of all appropriated funds were introduced in the two Houses. Senator Mansfield introduced S. 3578. Representatives Hebert Zelenko and Roosevelt introduced H.R. 11441, H.R. 11541, and H.R. 11682, which provided that:

*** notwithstanding any other provision of law, it shall be unlawful for any officer, agent or employee of the United States, or any department, bureau or agency thereof to withhold or impound or otherwise prevent any moneys appropriated by the Congress from being promptly used or applied by contract or otherwise for the purpose designated in the Act appropriating the same.

Neither House took any action on these bills. A Subcommittee of the House Committee on Government Operations did hold a hearing on the House bills. Prohibiting Withholding or Impoundment of Appropriations and Amending the Antideficiency Act, Hearing before a Subcommittee of the House Committee on Government Operations, 85th Congress, Second Session (1958).

The Bureau of the Budget opposed these bills both on the ground of general policy and on the ground that it would, in effect, nullify the Antideficiency Act. The Comptroller General likewise noted that the measures would supersede the Antideficiency Act. He also raised a question as to the meaning of the language "otherwise prevent any moneys appropriated from being promptly used." (Emphasis added). He wrote:

*** As you know, numerous appropriations in substantial amounts are made "available until expended." These appropriations, commonly referred to as "no-year appropriations," sometimes are not completely obligated for several years. The above-quoted language could be construed to require the obligation of such funds prior to the time most advantageous to the Government. For example, it might be desirable not to begin a new research and development program until some existing research or testing program is completed and the results become available. It would be desirable to

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