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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 "di. rected", 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 begu. late in 1941, President Roosevelt addressed a letter to Senator Arthur Vanden. berg 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 Exer utive 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 Attorner General's letter of February 19, 1967, to the Secretary of Transportation, supre. These were Hukill v. United States, 16 Ct.CI, 562, 565 (1880). Compagna v. United States, 26 Ct. Ci, 316 (1891); Lovett v. United States, 104 Ct. Cl. 557 (1945). affirmed on other grounds, 328 U.S. 303 (1946); and McKay v. Central Electrie 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.

MoKay 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 power. 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 securen 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. Louisrille, 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.


Washington, D.O., 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 appropriat

ing 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

clarify this language or, at least, to explain fully in the committee report

what is intended. In a letter to the Chairman of the House Committee on Government Operations urging favorable consideration of these bills, Senator Mansfield cited an instance where the major portion of an appropriation had not been released until a subsequent fiscal year as evidence of the need for such legislation.

In 1943, Senator McKellar had proposed an amendment to the First Supplemental National Defense Appropriations Act for the fiscal year ending June 30, 1944, 89 Congressional Record 10358 (1943), which 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. This amendment was adopted by the Senate, id. at 10419, but the House refused to concur in it, id. at 10781 and it was deleted by a second conference committee, id. at 10871.

Bills and joint resolutions have frequently been introduced in Congress to prevent the withholding of funds for particular purposes. Most of these have been defeated but a few have been enacted into law. The Rural Port Roads Act of 1913, 57 Stat. 560, stipulated that:

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 material

for additional highway construction would impede the conduct of the war. In 1947, a series of Joint Resolutions were introduced to prevent withholding of funds appropriated for public works. One of these, H.J. Res. 176, 80th Congress, read as follows:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That, notwithstanding any moratorium or curtailment policy heretofore put into effect at the direction of the President, it shall be the duty of all officers, departments, and agencies of the Government to proceed, to the full extent authorized by law and the limit of present appropriations, with all Federal public works projects

and programs coming under their jurisdiction. , No action was taken on any of these measures.

As passed by the House of Representatives H.R. 7764, 81st Congress, authorized and directed the President to undertake construction of certain naval vessels. 96 Congressional Record 7544 (1950). The word "directed” was deleted by the Senate; ed. at 11022.

In 1966, Congress authorized by Public Law 89-501, 80 Stat. 275 an appropriation for construction of naval vessels, of which amount:

$130.500,000 is authorized only for the construction of the nuclear powered guided missile frigate for which funds were authorized under Public Law 89-37; and $20,000,000 is authorized only for the procurement of long leadtime items for an additional nuclear powered guided missile frigate. The contract for the construction of the nuclear powered guided missile frigate for which funds were authorized under Public Law 89-37, and for which funds are authorized to be appropriated during fiscal year 1967, shall be entered into as soon as practicable unless the President fully advises

the Congress that its construction is not in the national interest. This was adopted in lieu of an amendment added in the House which declared that "the Secretary of the Navy shall proceed with the design, engineering and construction of the two-nuclear powered guided missile frigates as soon as possible." 112 Congressional Record 13051 (1966).

A similar provision was included in the Authorization Art for 1968. Public Law 90-22, 81 Stat. 52.

When H.R. 9751, 87th Congress, authorizing procurement of aircraft for fiscal year 1963 was reported to the House, the House Armed Services Committee recommended an amendment by which the Secretary of the Air Force

was "directed" to utilize not less than $491,000,000 during fiscal year 1963 to proceed with production, planning and long leadtime procurement for a RS-70 weapon system. The President took strong exception to the use of the word "directed" and the House yielded to his request that it be deleted. 108 Congressional Record 4694, 4714, 4720 (1962).

Section 601 of H.R. 11102, 91st Congress, provided that notwithstanding any other provision of law, unless enacted after the enactment of this Act expressly in limitation of the provisions of this section, funds appropriated for any fiscal year to carry out any program for which appropriations are authorized by certain designated acts should remain available for obligation and expenditure until the end of such fiscal year.

The President vetoed this bill, Daily Congressional Record H5899 (June 23, 1970), because it would interfere with his ability to comply with the limitation on total 1971 spending which had already passed the House and which was subsequently enacted as Title IV of the Second Supplemental Appropriations, 1970, P.L. 91-305.

Section 601 itself does not forbid the impoundment of funds. The laws to which it refers provide for formula grants to the states which the President regards as mandatory in the absence of other legislation authorizing him to withhold funds appropriated for that purpose. The expenditure limitation of Title IV of P.L. 91-305 would give him that authority.

The intended effect of Section 601 of H.R. 11102 was to negative the authority given by the law imposing the expenditure ceiling and thus leave in operation the mandate to spend funds appropriated to carry out the programs authorized by the designated statutes.

Previously, the President had vetoed H.R. 11311, 91st Congress because of the size of appropriations for formula grant programs which he would be required to spend because at that time there was no expenditure ceiling in effect which would permit him to withhold funds. Daily Congressional Record H. 344 (January 27, 1970). Two memoranda from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, expressed the opinion that Congress had made mandatory the expenditure of funds appropriated for assistance to federally impacted schools and certain other Office of Education programs. and that the President had no authority to impound funds in the face of a Congressional directive that they be spent. Such statutes usually give the administering officer some discretion in determining whether, or to what extent, an applicant qualifies for a grant, but the Assistant Attorney General concluded that such limited discretion does not authorize withholding for budgetary reasons.

Although the phraseology of different measures providing formula grants varies somewhat, they are similar in stating the conditions to be met by the grantee, the method of computing the amount of the grant, and in stipulating that a designated officer "shall" allot or pay to the grantee the sum to which it is entitled. For example, the statute providing federal assistance for areas affected by impacted activities, 20 USC 236-244, declares that local educational agencies shall be "entitled" to federal contributions in stated circumstances and provides that “The Commissioner shall * * * from time to time pay to each local educational agency, in advance or otherwise, the amount which he estimates such agency is entitled to receive under this chapter," 20 USC 240 (b).

We enclose herewith copies of the following materials:
1. Bureau of the Budget Bulletin 70-5, September 12, 1969.
2. Title II of Revenue and Expenditure Act of 1968.
3. BOB (OMB) Circular A-34.
4. Section 3679 of Revised Statutes as amended, 31 USC 665.

5. House Committee on Government Operations, 91st Congress, 1st session, "The Budget Process in the Federal Government."

6. Bibliography.

7. Memorandum dated December 1, 1969, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel on "Presidential Authority to Impound Funds Appropriated for Assistance to Federally Impacted Schools."

8. Memorandum dated December 1, 1969, from William H. Rehnquist. Assistant Attorney General, Office of Legal Counsel, on "Presidential Authority to Impound Funds Appropriated for Office of Education Programs."

Legislative Attorney.

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