ticular appropriations measure, however, the flexing of presidential muscle serves only to tear the fabric of the Constitution. One of the problems in this area stems from semantic confusion. Ambiguities in statutory wording sometimes obscure the difference between language allowing discretionary funding and language stressing the mandatory nature of certain congressional appropriations. An Assistant Attorney General remarked: “[A]n appropriation is not in itself ordinarily interpreted as a direction to spend. To determine whether or not there is a duty to spend one must examine the substantive legislation."" Hence, whether Congress used words like "direct," "mandate," "require," "order,' "shall," in one instance, or "authorize," "permit," "may," in another instance, can determine whether an entire project is carried out or quietly abandoned by the executive branch. There are numerous illustrations of this semantic difficulty. For example, an author suggests that one sentence in the Hospital Survey and Construction Act is mandatory since the verb "shall" is used, whereas a second sentence is "purely permissive and wholly discretionary" because "may" is the verb." The author concludes that "the Surgeon General is at liberty to disregard the second sentence" but must "follow the congressional command imposed in the first sentence."" The well-publicized controversy over the RS-70 weapon system (the B-70 bomber) is another instructive example. President Kennedy persuaded Representative Vinson, Chairman of the House Armed Services Committee, to replace the word "directed” with the word "authorized" in the legislation appropriating funds for the program." Though Vinson later explained that his Committee deleted the word only upon assurance that the Defense Department would take some action on this program," in the long run "[t]he project was restudied but no extra funds for the B-70 or RS-70 were ever spent.""" One scholar of de executive branch is directed "to expend as little as possible out of the funds appropriated." 31 U.S.C. 665(c)(2) (1964); see H.R. REP. No. 1797, 81st Cong., 2d Sess. (1950). One writer refers to this Act as a rationale for executive impoundment. See Kranz, supra note 14, at 65. However, a more accurate statement of congressional intent in the 1951 Act is the following: "There appears to be no statutory authority for the impounding of appropriated funds, except for purposes of economy and efficiency in executing the purposes for which the appropriation is made." Davis, supra note 13, at 55 (emphasis in original). President Kennedy, in a similar vein, declared in 1963: "I don't have the power to cut off the aid in a general way, as was proposed by the Civil Rights Commission, and I think it would probably be unwise to give the President of the United States that kind of power. . . ." N.Y. Times, April 20, 1963, at 11, col. 5. 31. Memorandum from Assistant Attorney General William H. Rehnquist to Edward L. Morgan, Deputy Counsel to the President, Dec. 19, 1969, at 1. 32. Hospital Survey and Construction Act (Hill-Burton Act), 42 U.S.C. 291 (1964). 33. Kranz, supra note 14, at 60. Underscoring the problem of semantic confusion in committee reports, Arthur MacMahon writes: "It is the difficult task of administrators to construe the reports and to identify the commands and interdictions which the committee intends to have an intrinsic force, not merely advisory value." MacMahon, Congressional Oversight of Administration: The Power of the Purse, 58 POL. SCI. Q. 161, 380 (1943). 34. Kranz, supra note 14, at 60. 35. Davis, supra note 13, at 43. 36. 108 CONG. REC. 4693 (1962). 37. T. SORENSEN, supra note 21, at 348 n.2. ... fense budgets remarks: "The fact that such a strenuous, and successful, effort was made to delete the term 'directed' carries an implied recognition that the Executive would not be free to ignore such a mandate . . . . 38 The moral of these examples should be clear: If Congress intends to mandate the executive branch, this should be unambiguously stated in the legislation so the President understands clearly when he has been "directed" and when he has been given discretionary powers. 3. Impoundment under authority of a congressional mandate. Directives from the Congress requiring the President to freeze funds for projects under certain conditions have become increasingly common. Under Title VI of the 1964 Civil Rights Act, for example, Congress mandates the executive branch to impound funds rather than spend them in areas practicing unlawful discrimination." This method of executive impoundment can be of great value in eliminating unlawful activities in this nation and is in harmony with the separation doctrine. Probing the effects of this kind of congressional mandate, one authority raises the following questions: "Does it merely shore up an already existing power? Does it create new power? Does it mean that in areas other than those covered by the Civil Rights Act-for example, national defense-the President has now made the tacit admission and will be held to the position that he cannot impound funds?" As this Comment suggests, the answer can be direct: It has always been the power of Congress to control the purse strings, and this type of congressionally mandated impounding is merely an example of such control. 4. Impoundment despite a mandatory appropriation. In the three types of impoundment outlined above, the President is mitted by Congress to withhold the expenditure of duly appropriated funds under certain conditions. If we are to preserve our democratic institutions, however, the President cannot be allowed the further privilege of ignoring a mandated appropriation. It is this form of impoundment that represents a grave threat to the integrity of Congress. In a recent review of the impoundment question, one political scientist states his belief that a constitutional issue emerges only when Congress finds a legislative program cancelled or abbreviated because the President considers the purpose unwise, waste 38. Davis, supra note 13, at 44 n.27. 39. 42 U.S.C. §§ 2000d to 2000d-4 (1964). See also the Library Services Act, 70 Stat. 293 (1956), as amended, 20 U.S.C. §§ 351-58 (1964); Vocational Rehabilitation Act, 41 Stat. 735 (1920), as amended, 29 U.S.C. § 3 (1964). 40. Miller, supra note 4, at 544. ful, or inexpedient. He then no longer operates on the basis of legislative authority. On the contrary, he matches his will against that of Congress."1 This type of impoundment occurs with increasing frequency. The executive often refuses to spend funds that Congress explicitly orders spent. Today we find, for instance, that "while Congress authorized and presumably intended to spend $8.9 billion on school aid this year, the Nixon budget contained only $3.2 billion."" We learn from an Assistant Secretary of Health, Education, and Welfare that medical research and other projects over which the executive branch has much control may be cut back or halted by discretion of the President, despite specific congressional orders directing that the projects be carried out.** Most recently, it is reported that President Nixon vetoed the vital and popular" Hospital Construction Bill because of a "[p]articularly obnoxious . . . provision in the bill that would have prevented [the President] from impounding any of the $1.2 billion in hospital construction grants authorized for the next three years." 9745 The outright elimination of entire programs ordered by Congress is a blatant example of this dangerous trend." A more subtle accretion of executive powers is found in the practice of “reserving" funds (to use the Budget euphemism) with a promise to release them at a later, "more fiscally responsible" time. Though the executive branch is quick to disclose instances when these funds are actually later released, not a word is uttered about those projects that are quietly entombed-or released only after great pressure is brought to bear on specific agencies or Budget officials." As suggested earlier, Congress is reduced to vigorous lobbying to compel expenditures, despite the fact that the funds have already been mandated for spending and the congressional mandate signed into law by the Chief Executive, who, according to the Constitution, is supposed to see that "the laws are faithfully executed."" The tentative typology presented here may lead to a further refinement in the study of impoundment procedures as additional data are uncovered. 41. Fisher, Funds Impounded by the President: The Constitutional Issue, 38 GEO. Wash. L. Rev. 124, 125-26 (1969) (emphasis in original). 42. Washington Post, Jan. 24, 1970, at A2, cols. 1-8. 43. Washington Post, Jan. 17, 1970, at A2, cols. 4-6. 44. The bill passed both the House and Senate without a dissenting vote. Wall Street Journal, June 23, 1970, at 5, cols. 2—4. 45. Id. 46. See note 22 supra. 47. For example, the Bureau of the Budget did not release $3 million authorized for the moltensalt breeder reactor at Oak Ridge; the breeder had shown promise of being "the cleanest and most efficient fuel source for electric power." TIME, Feb. 16, 1970, at 45. For a recent example of one Senator's successful effort to exhume appropriated moneys see Washington Post, Jan. 17, 1970, at A2, cols. 1-2. 48. Goostree, The Power of the President to Impound Appropriated Funds: With Special Reference to Grants-in-Aid to Segregated Activities, 11 Am. U.L. REV. 32, 39 (1962): “[T]he high Constitutional duty to see that the laws are faithfully executed does not coufer upon the President the discretion to determine what law shall be executed and how much." It should be remembered that of the four methods outlined above, only the last-impoundment despite a mandatory appropriation-is impugned here as illegitimate and a threat to representative government. II. THE CONSTITUTIONAL AND POLITICAL IMPLICATIONS OF 49 Those who have carefully examined court decisions bearing on the impoundment issue have concluded that no cases involve the problem directly, and those cases that are of tangential significance fail to settle the issue." One constitutional scholar concludes: "[T]he relationships between President and Congress are essentially political and are to be solved by the operation of the political process, not by resort to legalistic arguments.""" As this issue is not resolved by past court decisions, and as the chances of a future test of this case before the Supreme Court are remote," it is evident that we must rely for authority on (1) an examination of the wording of the Constitution itself, (2) the American tradition of separate institutions and checks and balances in government, and (3) the political arguments for and against executive discretion in this area. A. The Constitution Recognizing that the Constitution offers no specific guidelines concerning the "reserving" of appropriated funds, it is nonetheless plain that the authors of that document did not intend to give the Chief Executive an absolute veto over public spending. No item veto is specifically granted to the President by the Constitution, and the provision for overriding a veto upon a two-thirds vote lends credence to the proposition that the President has no constitutional power to veto legislation absolutely. If the President 49. One investigator states: "A number of decisions by the Supreme Court are being invoked in an effort to demonstrate that Presidents lack constitutional authority to impound funds. Taken from context, various phrases of the Court appear to have bearing on the issue, but on closer inspection they have little, if any, relevance. Furthermore, efforts to justify impoundments on the basis of other court decisions are also not persuasive." Fisher, supra note 41, at 136 (original emphasis). A long line of cases might be cited against impoundment. Kent v. Dulles, 357 U.S. 116 (1958); Cole v. Young, 351 U.S. 536 (1956); Peters v. Hobby, 349 U.S. 331 (1955); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); United States v. Louisville, 169 U.S. 249 (1898); United States v. Price, 116 U.S. 43 (1885); The Floyd Acceptances, 74 U.S. (7 Wall.) 666 (1868); Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524 (1838). An equally long line of cases can be cited as justification for impoundment. United States v. Pewee Coal Co., 341 U.S. 114 (1951); United States v. Lovett, 328 U.S. 303 (1946); United States v. Midwest Oil Co., 236 U.S. 459 (1915); In re Neagle, 135 U.S. 1 (1890); Simkins v. Moses H. Cone Memorial Hosp., 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938 (1964); McKay v. Central Elec. Power Cooperative, 223 F.2d 623 (D.C. Cir. 1955). See generally Fisher, supra note 41; Goostree, supra note 48; Miller, supra note 4; Ramsey, supra note 14; and Small, supra note 22. 50. Miller, supra note 4, at 544. 51. For understandable reasons, the Supreme Court has shied away from entering the political arena where the persistent power struggle between Congress and the President is waged. Even in cases where legitimate constitutional questions may be posed, the hurdles obstructing a judicial determination are formidable indeed. See Goostree, supra note 48, at 33. or his subordinates are permitted at will to refuse to spend funds after an appropriations statute has been signed into law, then in essence these officials have "an absolute veto exercised without danger of being overridden by a two-thirds vote of Congress."'"* The Constitution in certain specific cases seems to grant to Congress actual affirmative power rather than the right merely to limit spending. In the military sphere, for example, the constitutional prerogative of Congress to "raise and support armies" and to "provide and maintain a Navy" carries with it the implication that Congress may ensure that the funds for these military activities are expended in the manner determined by Congress. Similarly, in other areas of spending, the congressional power of the purse is not simply negative power to establish a ceiling, but rather a full and positive authority to compel expenditure of the funds." An Assistant Attorney General states: "With respect to the suggestion that the President has a constitutional power to decline to spend appropriated funds, we must conclude that existence of such a broad power is supported by neither reason nor precedent." Every refusal by the President to execute a program or project, once made law, is nothing less than the exercise of a patently unconstitutional absolute veto. B. Separation of Powers A vital ingredient of democracy in our country is the opportunity afforded diverse political interests-civic groups, government agencies, private citizens, and others—to appeal in a meaningful way to the Congress, the courts, and the executive branch to advance the policies they favor. Once it is widely recognized that a project may be entombed by the executive branch-even when a convincing case has been made before the Congress and moneys have been appropriated-the American people will sense the futility of appealing to their elected representatives. They will conclude that the executive branch is the only significant arena for policymaking. This undermining of confidence in the ability of Congress to act with authority on appropriations will eventually destroy public reliance on that representative body and thereby increase the power and authority of the executive to the detriment of our tradition of separate institutions acting as checks and balances on one another. C. The Political Argument The argument most readily embraced by proponents of impoundment may be stated generally as follows: The question of freezing funds is 52. S. HUNTINGTON, THE SOLDIER AND THE STATE 427 (1957). 53. W. MORROW, CONGRESSIONAL COMMITTEES 161 (1969). 54. Memorandum from Assistant Attorney General William H. Rehnquist to Edward L. Morgan, Deputy Counsel to the President, Dec. 1, 1969, at 8. |