This is not to say that private individuals cannot discriminate, but it is to say that neither the federal government nor the states can engage in programs that have that effect. Accordingly, it may well be that the "hidden joker" is itself unconstitutional.156 III. CONCLUSION I have sought to set forth some of the complexities inherent in the determination of any constitutional question, with emphasis upon the issue of whether the President may impound appropriated funds. Some attention has been accorded title VI of the Civil Rights Act of 1964, even though extensive discussion would be premature. One main conclusion which emerges from what has been said above is that by slow accretion the Presidency (and the public administration generally) is becoming the dominant branch of the national government. Many reasons exist for this development within the framework of the Constitution of 1787.157 The "nationalization" of racial questions, which began in 1954 with the Supreme Court's decision in Brown and which culminated in 1964 in the Civil Rights Act, had, an even earlier precursor in executive action. While the focus has been mainly on the Court and Congress, it should not be forgotten that President F. D. Roosevelt's executive order158 in 1942 on non-discrimination in employment under war contracts was the first important federal governmental action since Reconstruction days to attempt to redress the position of disadvantaged American citizens.159 This is just another illustration of the growing importance of the Executive in the American constitutional order. upon the Executive to "take care" that the commands of the Constitution are carried out. While the concept doubtless cannot be pressed very far at this time, it can nevertheless be said that an emerging concept of duty seems to be visible in recent events, particularly in the matter of racial segregation. Cf. Miller, An Affirmative Thrust to Due Process of Law?, 30 GEO. WASH. L. Rev. 399 (1962). See the statement in a paid advertisement in the New York Times by several dozen members of faculties of New England universities, implying that the President is under a duty to protect the exercise of constitutional rights in advance of their denial; the context of the statement was the racial crisis at Selma, Alabama. N.Y. Times, March 15, 1965, p. 34, cols. 5-8. 156 Further discussion is beyond the scope of this article. Quaere: is there a presidential duty not to obey the statutory mandate excepting contracts of insurance and guaranty? 157 See Miller, Technology, Social Change, and the Constitution, 33 GEO. WASH. L. REV. 17 (1964). 168 Exec. Order No. 8802, 6 Fed. Reg. 3109 (1942). 150 For discussion, see RUCHAMES, RACE, JOBS, AND POLITICS (1953). STATEMENT OF CONGRESSMAN JOE L. EVINS (DEMOCRAT, TENNESSEE) Mr. Chairman and distinguished members of this Committee-I want to thank you for this opportunity of presenting my views on this most important matter of the separation of powers. I want to commend you, Mr. Chairman, for conducting these timely and appropriate hearings. As you know, our forefathers when they drafted the Constitution had some rather definite ideas concerning the doctrine of the separation of powers and checks and balances. This is, of course, fundamental to our system and through the years this sensitive system has worked remarkably well. At times we have had strong Presidents-at other times we have had weak Presidents and strong Congressional leaders-and at other times the judicial branch has been dominant. However, the system has always worked--the pendulum has always swung back as the various constitutional checks and counter-measures available to the various branches were used to re-establish their rightful place in the American system of Government. These hearings, Mr. Chairman, are most timely because it seems to me that at this time we are at a critical juncture in history with respect to preserving the powers and prerogatives of the Congress. As you are aware, many of the powers of the Congress have been eroded over the years. Many powers vested in the Executive in wartime have set precedents and established a trend of concentration of power. Our Federal Government has grown in size, magnitude and complexity with the President, the Cabinet Secretaries and other high officials assuming greater and greater powers. And I must say that Congress all too often has gone along with the recommendations of various Presidents and reorganization proposals which have served to negate its own power. In any event there has been a steady encroachment by the Executive Branch on the Legislative Branch. One of the most disturbing elements of this encroachment is the expanding power of the Office of Management and Budget (OMB), formerly the Bureau of the Budget. One of the most flagrant abuses of Executive power is the excessive employment of the freezing, withholding and impoundment of funds appropriated by the Congress by the Bureau-now by the OMB. The OMB was created in a reorganization last year allegedly to assure a more efficient management of Federal funds and Federal Departments and agencies. This agency-OMB-within the Executive Branch is exercising enormous powers following this reorganization, and the Director of OMB is now referred to in the press as the "General Manager of the United States Government." What we are actually seeing, gentlemen, is a tremendous concentration of power in a vehicle which was originally established to coordinate budgets for submission to the President. OMB undertakes to overrule agencies on program policies, on such things as cost-benefit ratio components of public works projects, on standards for programs. But more than that-the OMB is arrogating power vested in the Congress by the Constitution by disregarding priorities set by the Congress and substituting its own priorities-rewriting legislation and appropriations, in effectexercising what amounts to unconstitutional item vetoes. The OMB has impounded more than $11 billion in funds appropriated by the Congress last year. I receive letters from constituents almost every day protesting the emasculation of some important project or program authorized by Congress. We all know and understand that the Anti-Deficiency Act permits some limited control of funds to spread expenditures by an agency throughout the year on a uniform basis. But the intent of this Act was not to give the Executive Branch the power to impound monies in wholesale fashion-destroying or altering the priorities established by Congress and shifting funds willy-nilly according to the whims of the Budget Bureaucrats. We all know and understand that Congress in the past several years has established a ceiling on expenditures. And we also know and understand that this is a flexible ceiling which goes up or down, depending upon appropriation actions of the Congress. The ceiling is flexible and was designed to adjust automatically, based on appropriations passed by Congress. For some months one excuse for impoundment was inflation. Currently the President has proposed deficit-financing in his expansionary budget with his primary goal and objective now as full-employment. And yet the withholdings continue and OMB continues to defend its policies before Committees of the Congress. The OMB continues to say when and where funds appropriated by the Congress shall be expended while in many instances disregarding the will and intent of the Congress. This is indeed a dangerous practice. The precedents which this reorganized Budget Bureau is attempting to set can, if left unchecked, effect a shift in the balance of power that can inhibit the powers of Congress permanently and in large measure negate the appropriations process and the will of the people, expressed by their elected Representatives. We all know that one of the keystones of the check and balance system is the power of the purse possessed by the Congress. From this power flows many corollary powers of examination, review, inquiry and investigation. This power must be preserved, safeguarded and maintained. Let me demonstrate the manner in which the OMB is chipping away and undercutting this power of the Congress. On the two Appropriations Subcommittees on which I serve the Independent Offices-Housing-Space-Science Subcommittee and the Public Works-Atomic Energy Commission Subcommittee-we find that the Office of Management and Budget has withheld and is withholding substantial funds approved by Congress last year. The OMB has withheld $1 billion, 325 million from the HUD Appropriations Bill-shortchanging the urban renewal program $200 million-the water and sewer grant program by $200 million-the Model Cities program of $727 million-and the public housing program by $193 million. In the Subcommittee on Public Works Appropriations, OMB has impounded funds totaling $91 million, 700 thousand for 145 public works projects for the Nation-funded last year. Funds for all projects initiated by the Congress last year were impounded. Funds for a few Administration budgeted projects included in the impoundment have been released. In this bill Congress exercised its authority to set priorities. Recommended appropriations for some programs were reduced-some were increased-and some projects were added because of our determination and decision that they were in the public interest. After the action by the Congress on this bill, there was a net reduction of $26 million from the amount budgeted. In other words, the bill which Congress passed and the President signed was $26 million less than the President and the OMB had requested. And yet these unelected officials in the OMB shuffle priorities-withhold funds arbitrarily and in effect substitute their judgment for the judgment of the Congress. Currently $45,649,000 is being withheld on 107 projects of the Army Corps of Engineers. It is interesting to note that these projects are the additions and new construction starts added by the Congress. The add-ons and new starts which the President requested were briefly held in reserve and then released. In other words, Budget Bureau officials have chosen to ignore the Congress-the people's Representatives. Now we are advised that all but $5,145,000 of the $45 million now held in reserve will be released next fiscal year. I am pleased and delighted that funds for these projects are being released-however, this action-this delay by impounding in the first place—will result in more Federal expenditures in the long run. Labor costs, the costs of material, and other costs continue to increase. In other words, the American people are subsidizing with their tax dollars the political maneuvering, slowdowns and delays of Budget Office of Management. Mr. Chairman, two items appropriated for Atomic Energy Commission projects, which are being withheld by the Executive Branch, constitute in my judgment an item veto. Last year the Congress provided $600,000 for the American Museum of Atomic Energy at Oak Ridge, Tennessee an educational project which has been specifically authorized and will benefit the whole Nation. We also provided $500,000 to build an addition to the Argonne National Laboratory in Illinois, another important project of national interest. Not only has the President refused to release the appropriations for these projects, the President proposed in his new budget to Congress to divert funds for these items totaling $1.1 million to another area in the AEC. This, Mr. Chairman, represents item vetoes which are unconstitutional. Mr. Chairman, the time has come for Congress to stand firm against this encroachment and critical usurpation of powers of the Congress. This is a dangerous precedent and a disturbing trend and should be stopped. We must serve notice on the Executive Branch by every means possible that this usurpation will not be sanctioned or accepted by Congress. The Constitutional balance of powers must be maintained. [Reprinted from 22 Stanford Law Review 1240 (1970)] COMMENTS Impoundment of Appropriated Funds: Frank Church* The aggrandizement of governmental power, particularly executive power, is a well-known theme in the literature on American politics.1 Mushrooming executive authority should, of course, surprise no one, given "the three great centralizing experiences of this century-world wars, extended depression, and protracted Cold War." The important question is whether increasing executive authority has impaired the separation of powers prescribed by the Constitution. Is our nation guided, in a spirit of comity, by three strong and separate branches of government? Or, to paraphrase Roscoe Pound, are we witnessing the desuetude of representative government, the rise of "executive hegemony" ?* Despite Congress' apparent abdication of its constitutional responsibilities under certain powers, some suggest that Congress has nonetheless managed to preserve the scope and significance of its policy role by using other available tools-open debate, committee investigations, and, especially, continuing control over public spending. For example, in 1959 Senator Hubert Humphrey stressed: "[W]ith its power of the purse, and through the right to investigate, to criticize and to advocate, the Congress does exert a significant influence on the quality and direction of United A.B. 1947, J.D. 1950, Stanford University. United States Senator from Idaho. The author wishes to thank Loch K. Johnson, American Political Science Association Congressional Fellow, for his assistance in the preparation of this Comment. 1. See, e.g., E. CORWIN, THE PRESIDENT: OFFICE AND POWERS, 1787–1957 (1957); V. Key, Jr., POLITICS, PARTIES, AND PRESSURE GROUPS (5th ed. 1964); L. KOENIG, THE CHIEF EXECUTIVE (1964); R. NEUSTADT, PRESIDENTIAL POWER (1960); C. ROSSITER, THE AMERICAN PRESIDENCY (1956); A. SCHLESINGER, JR. & A. de Grazia, CONGRESS AND THE PRESIDENCY: THEIR ROLE IN MODERN TIMES (1967). 2. K. WALTZ, FOREIGN POLICY AND DEMOCRATIC POLITICS 103 (1967). 3. The phrase "separate institutions sharing powers" has been offered by Neustadt as a clarification of the proper constitutional relationship of our political institutions. R. NEUSTADT, supra note 1, at 33. Essential to both this expression and the more common "separation of powers" is the notion that no branch of government may be allowed to usurp those powers meant to be shared by another branch of government. In the appropriations process, for example, one finds an overlap of functions, powers, and responsibilities to be shared by Congress and the President. The difficulty, of course, lies in ascertaining when a particular branch no longer plays a viable role in the partnership. 4. Quoted in Miller, Presidential Power to Impound Appropriated Funds: An Exercise in Constitutional Decision-Making, 43 N.C.L. Rzv. 502, 523 (1965). |