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the result in a given case, require that attention be paid to the results, to what happens in an instance of constitutional adjudication. For after all, such cases have important consequences for actual people, people beyond the immediate litigants, and the results thus are important. Important, yes, but not the whole of the matter. Accordingly, the synthesis that is necessary must come from a fusion of the teachings of three disparate groups: the legal realists, who revealed the complexity and the uncertainty of the decisionmaking process; the counter-revolutionaries, who have pointed out that rules and the process itself are important; and the libertarians (the activists), who show that the results of the process are important in that a significant impact is made upon the value position of the American citizenry. .
This brings the discussion back to the question posed before the digression on method began: what are the considerations relevant to the determination of a constitutional problem? I know of no one who has provided a satisfactory answer to that question. If it is reduced to its present context, however, it may be a bit more manageable: what are the considerations relevant to determination of the issue of presidential power over appropriations? The following may be suggested, not as a definitive listing but as an indication of the complexity of the problem.
C. The Relevant Factors .-1. The Need for Contextual Analysis.-Presidential power over expenditure of appropriated funds must be seen, first of all, in the context in which it arises. A requirement exists for contextual analysis of any constitutional question. Without such an approach, commentary on constitutional problems tends to turn into relatively sterile exegeses of doctrinal texts of an order not significantly different from those medieval scholastics who allegedly worried about such pseudo-questions as how many angels may dance on the point of a needle. The context surrounding the problem of shared power over appropriations contains at least two subsidiary questions: (a) are there other examples of power being exercised by the Executive in situations where Congress has express constitutional power? and (b) what is the social milieu in which the problem arises ? Both merit brief attentiori.
As the late Professor Edward S. Corwin noted in his leading
text"7 on the presidency, the history since 1787 has been one of the aggrandizement of the powers of the Executive. Whạt the President has done in impounding funds fits into a pattern of other action which collectively makes up a marked trend toward greater executive and administrative power. The following may be suggested as illustrative instances, although far from an exhaustive listing, of executive activities within the area of congressional constitutional power :
(a). Control over public lands. Repeated assertions by the President that he had the right to withdraw public lands from private acquisition was upheld by the United States Supreme Court in 1915, Congress never having repudiated the practice.68 The Constitution, it will be recalled, states in article IV that Congress is the organ with power over public property.
(b). Control over other public property. Despite article IV and despite the absence of any specific authorizing statute, President F. D. Roosevelt in 1938 transferred fifty "over-age" destroyers to Great Britain in exchange for ninety-nine-year leases on certain military bases. The action was justified by an opinion from the then Attorney General, a document in itself a remarkable instance of the manner in which government lawyers can find a legal basis for an action deemed desirable and necessary by the President.
(c). Control over federal contracts. The contracting power, while not mentioned in the Constitution, is an inherent power of the national government. As such, it would seem that ultimate power in this area lies in Congress. There are a number of ways in which the Executive exercises control over contractual matters in the absence of prior congressional approval. Noted above was the practice of placing certain conditions upon award of contracts and the practice of withholding certain funds that Congress wanted to spend contractually. Others include the "blacklist,” that is, a list of business firms that are barred for various reasons from obtaining contracts; Defense Manpower Policy No. 4, under which contracts are funrelled into "labor-surplus” areas; the procurement process itself, whereby by far the greatest amount of procurement dollars are spent under "negotiated" rather than "advertised bid” contracts
" CozwIX, THE PRESIDENT: OFFICE AND Powers (4th ed. 1957).
despite the clear statement by Congress of preference for the latter; the administration of certain other statutes, such as, for exaniple, the Contract Adjustment Act of 1958;61 that statute calls for publicity being given to decisions of Contract Adjustment Boards, but the Pentagon interprets this to mean that they merely have to make the decisions available; this is done by filing them and producing them when asked for, but not announcing them; and, finally, "weapon systen” procurement, not authorized by statute, but nonetheless often used.62
(d). Administration by contract. This is a system of calling upon profit and non-profit corporations and organizations to perform a considerable amount of the public administration of the government, administration which Congress had thought was to be accomplished by public officials but which in fact is done by contractor employees. Among other things, this has the result of circumventing certain civil service laws. 63
(e). The stockpiling program. A program started by Congress for the purpose of helping national defense was apparently turned by the administrators into a system whereby the prices of the goods being stockpiled were stabilized and kept high.64
(f). The "executive privilege" doctrine, which had its inception in a "temporary" emergency-type measure but which now has so proliferated as to keep from Congress many documents and other information about activities in the Executive Branch.65
(g). By far the most evident and the most extreme measures “72 Stat. 972, 50 U.S.C. $$ 1431-35 (1958).
“ For discussion, see Miller & Pierson, Observations on the Consistency of Federal Procurement Policies With Other Governmental Policies, 29 LAW
& CONTEMP. PROB. 277 (1964); Miller, Administrative Discretion in the · Award of Federal Contracts, 53 Mich. L. Rev. 781 (1955).
“ See Dupré & Gustafson, Contracting for Defense: Private Firms and the Public Interest, 77 Pol. Sci. Q. 161 (1962); Miller, Administration by Contract: A New Concern for the Administrative Lawyer, 36 N.Y.U.L. Rev. 957 (1961); Washington Star, March 5, 1965, p. 1, cols. 3-4 (discussion of House Civil Service Conimission report on “contracting-out").
“ See SUBCOMM. ON NATIONAL STOCKPILE AND NAVAL PETROLEUM RESERVES, SENATE COMM. ON ARMED SERVICES, 88th Coxg., Ist Sess., INQUIRY INTO THE STRATEGIC AND CRITICAL MATERIAL STOCKPILES OF THE UNITED STATES 36-45 (Comm. Print 1963). This draft report met subcommittee opposition, with three senators opposing it. However, the point made in the textual discussion does not seem to be disputed by any of the three dissenters. . "For discussion, see Kramer & Marcuse, Executive Privilege-A Study of the Period 1953-1960, 29 Geo. Wash. L. Rev. 623 (1961).
have been those taken by Presidents during time of war. A listing of some of those by President F. D. Roosevelt should suffice to show : what was involved:
In April 1942 the writer [Corwin) requested the Executive Office of the President to furnish a list of all the war agencies and to specify the supposed legal warrant by which they had been brought into existence. A detailed answer was returned that listed forty-three executive agencies, of which thirty-five were admitted to be of purely executive provenience. Six of these raised no question, for all they amounted to was an assignment by the President of additional duties to already existing officers and to officers most of whose appointments had been ratified by the Senate. Thus our participation in the Combined Chiefs of Staff became an additional duty of certain military and naval commanders, and the combined Raw Materials Board was a similar creation. Nobody was assigned to such duties who was not already in an office to which the duties were properly referable. But the Board of Economic Warfare, the National Housing Agency, the National War Labor Board, the Office of Censorship, the Office of Civilian Defense, the Office of Defense Transportation, the Office of Facts and Figures and the Office of War Information, the War Production Board (which superseded the earlier Office of Production Management), the War Manpower Commission, and later on the Economic Stabilization Board—all of these were created by the President by virtue of the "aggregate of powers" vested in him "by the Constitution and the statutes”—a quite baffling formula, ... the invention of Mr. Jackson.66
To some extent, of course, such examples of executive power reveal only that when Congress delegates authority to an administrative agency it tends to lose control and that the administrator has considerable discretion to interpret his mission. De Tocqueville noted this in a somewhat different context, when he said:
When the central government which represents (the) majority has issued a decree, it must entrust the execution of its will to agents over whom it frequently has no control and whom it cannot perpetually direct. The townships, municipal bodies, and counties form so many concealed backwaters, which check or part the tide of popular determination.87
“ CORWIN & KOENIG, THE PRESIDENCY TODAY 36 (1956). See generally CORWIN, THE PRESIDENCY: OFFICE AND POWERS (4th ed. 1957).
" DE TOCQUEVILLE, DEMOCRACY IN AMERICA 271 (Bradley ed. 1945). '"[I]t is untrue that the decisions of the bureaucrats (public or private) are exclusively routine decisions. Many, indeed, are creative ones, not derived
\But over and above that is the fact that the growing number of such examples evidences the rise of what Roscoe Pound once called "executive hegemony" in government, of the desuetude of representative government. More and more, the President is asserting an independence from Congress, even in some instances where Congress has clear constitutional authority to act and has acted. The Constitution sets up a system of shared power and even of apparent legislative dominance but the flow of events is turning that system into something different in fact. The positive law bespeaks one thing, the “living law" of American constitutionalism quite another.68 The point advanced here is merely that presidential conditioning and impounding of funds is not unique. I do not suggest further that this exhibits even a limited type of cavalier disregard of the constitutional proprieties. The problem is much more complex and difficult.
The other aspect of the context in which the problem at hand may be viewed is that of the world situation—the total social milieu
-against which the legal question is projected. This may be briefly set out for the point need not be labored that this is an age of revolution, of rapid social change, of even cataclysmic conflict. Turbulence is in the air, both domestically and planet-wide. That point is fast becoming a truism, and need not be expanded at this time.
But the implications are of fundamental significance in process of change is the very role of Congress in American government. That body stands as the last legislative institution of any real importance in the entire world; in no other nation, not even Great Britain, does the legislature have such a significant position as in the United States. But even so, what seems to be in process of being created—by slow accretion—is executive government. A major contributing cause of this trend is the advent of new problems that government must grapple with and the acceptance of new responsibilities that government must fulfill. At the present time, it may be said, the trend toward executive dominance is still in its formative stages, but it is gathering speed and, if one may be pardoned a look into a cloudy crystal ball, will continue to do so. (It from precedent or standing rules, but highly discretionary and thus essentially law-making in character.” NEUMANN, THE DEMOCRATIC AND THE AUTHORITARIAN STATE 15 (1957)..
"Cf. Miller, Notes on the Concept of the "Living" Constitution, 31 Geo. Wash. L. Rev. 881 (1963).