not thought to be of an essential defense nature." Since that time, Presidents have utilized the impounding technique from time to time to reduce the level of expenditures for an authorized program, invariably accompanied by Congressional protest. The problem arises when Congress appropriates more funds for specific defense purposes than requested by the President, or authorizes and appropriates funds for defense objectives not considered essential by the Chief Executive. The question then arises as to whether Congress can require the Executive Department to expend funds for such defense purposes. Involved in this controversy is the doctrine of the Separation of Powers, the authority granted Congress and the President over the armed forces by the Constitution of the United States, and the political and practical factors involved in the preparation and execution of defense budgets. The recent controversy over the B-70 strategic bomber (later called the RS70 weapon system) highlights the dispute between at least some of the members of Congress and the Executive relative to the expenditure of funds appropriated for defense purposes. This controversy is presented to illustrate the nature of the problem involved. The discussion in Congress relative to the RS-70 controversy is set forth herein at considerable length to indicate representative views of Congressmen. In this respect, it should be borne in mind that we are concerned with the power of Congress to require certain expenditures. The exertion of such power as Congress may possess will depend to a great extent on the individual legislator's concept of Congressional authority in the matter. Although admittedly transient, the individual viewpoint is nonetheless important as a gauge of the near unanimity of opinion required to impose a Congressional mandate in this area. The power of Congress to compel expenditures for national defense would technically include the power granted Congress "To provide for organizing, arming, and disciplining, the Militia.". This aspect is excluded from the present discussion which is limited, essentially to the border aspects of Congres sional power to "provide for the common Defense," and the power to "raise and support Armies." II. THE RS-70 CONTROVERSY [T]he Secretary of the Air Force is directed to utilize than $491,000,000. . . for an RS-70 weapon system. 5 an amount not less The House Committee on Armed Services recommended that the bill to authorize appropriations during fiscal year 1963 for the Armed Forces include in part, the foregoing provision. The members of the committee wished that there be no misunderstanding as to their choice of terms: "Lest there be any doubt as to what the RS-70 amendment means let it be said that it means exactly what it says: i.e., that the Secretary of the Air Force, as an official of the executive branch, is directed, ordered, mandated, and required to utilize the full amount of the $491 million authority granted . . . for an RS-70 weapon system.'"" Why was the Committee so adamant concerning the utilization of this authorization? Its members were concerned over what appeared to be "plans of the Department of Defense . . . toward the ultimate elimination of bomber aircraft," and the placing of sole reliance on the intercontinental ballistic missile. As a result of this concern, Congress had appropriated for fiscal year 1962 approximately $695 million, in addition to that requested by the executive branch, for the procurement of bombers and for a more vigorous prosecution of the B-70 program. These funds had not been used by the Defense Department despite a strong expression of congressional desire that the procurement of bombers be continued and that a strategic aircraft system be developed." The 1 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, 34 (1962). 2 U.S. Const. art I. § 8. cl. 16. 3 U.S. Const., art I, § 8, cl. 1. 4U.S. Const. art. I. § 8. cl. 12. H.R. Rep. No. 1406, 87th Cong., 2d Sess. 1 (1962). (Emphasis added.) 6 H.R. 9751, 87th Cong., 2d Sess. (1962). 7 H.R. Rep. No. 1406, supra note 5, at 9. 8 Id. at 4. Id. at 4-5. See generally Whelan, Legislative Regulatory Activity in Research and Development Contracting 59 (1963). Committee considered this circumstance as "still another rebuff of congressional will," and listed thirteen other recent instances in which appropriations for defense expenditures desired by Congress had been disregarded by the Executive.10 "[I]s the function of the Congress solely a negative one in that it can withhold authority or funds and prevent something from being done? Or can it exercise a positive authority and by affording the means require something to be done? Thus the Committee posed the question to be considered in this study. 9911 III. THE DEBATE IN CONGRESS Discussion of the Armed Forces authorization12 and appropriation bills for fiscal year 1963 on the floor of the House and Senate revealed a divergence of opinion among Congressmen as to whether Congress could, or should, direct the Executive to expend funds for a purpose desired by the former but not the latter. This may be illustrated by the following extracts from the Congressional Record: 13 "[T]he Constitution does not give the legislative body direct authority to require expenditures of funds appropriated by that body, but this possibly could be established by the rather dangerous negative approach whereby concessions would have to be made by both sides. The whole matter should be determined on the basis of whether or not this weapons system is needed to protect our country." "[I]f I understand the Constitution, ... the Founding Fathers provided that the Congress as a legislative body had the privilege and the duty to raise and support armies, and otherwise provide for the armed defense of the country. While, on the other hand, the President was set up as the Commander in Chief of the Armed Forces. "Therefore, . . . the Committee on Armed Services is unquestionably within its right in insisting that the moneys it authorizes for particular weapons should be expended by the executive department for that purpose.15 "[W]e have authorized various Presidents, of all types, stripes, and breeds, to do many things that they have failed or refused to do. I know of no particular method or means the Congress has to compel or to force any President to expend any funds which may be authorized and appropriated."1 I ask you what is Congress' function in defense? Is it a partner? Does it have a voice? Or is it just Mr. Money-bags, to give or to withhold funds? That is not what the Constitution says; the Constitution grants the Congress the exclusive power to raise and support and make rules for our military forces. The language of the Constitution is clear. 17 Congress does not want to run the Department of Defense-Congress just wants to sit at the table and get across an idea once in a while." We make that decision in the exercise of our responsibility under the Constitution as to the size and nature of the Armed Forces we shall have. That is our responsibility and we seek to discharge it. We have no intention to transgress upon the constitutional duties and responsibilities of our President, as Commander in Chief. We shall give him our fullest cooperation. We ask of him and of his Secretary of Defense that they cooperate with us 10 H.R. Rep. No. 1406, supra note 5, at 5-6. ... 11 Id. at 8. The Committee recognized that an authorization act without a corresponding appropriations act would be ineffectual, but hoped to express a "unanimity of feeling" with the Appropriations Committtee, "backed by the vote of the whole House and the whole Congress ." Id. at 8-9. 12 The Constitution does not speak in terms of authorization of funds. Instead, its pertinent provision is that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law ." (U.S. Const. art. I. § 9, cl. 7). The re quirement that there must be an authorization act before there can be an appropriation stems from the rules of the House and the Senate. E.g., House Rule XXI, II.R. Doc. No. 122, 86th Cong., 1st Sess. 20 (1959). The "legislative" committees consider authorizations and the Committees on Appropriations consider appropriations within limits of the authorization. If an appropriation for which there is no authorization is proposed and becomes law because no successful point of order was made against it, the appropriation act is considered to be sufficient in itself. 13 108 Cong. Rec. 4645-46, 4689-724, 6303-19, 6836-49, 10342-81, 14832-33, 15244-45 (1962). 14 Id. at 4645 (remarks of Senator Goldwater). I, for one, shall insist that . . . [the] President . . . recognize the constitutional responsibility-a right as well as a duty-of the Congress to determine the size and nature of our Armed Forces." 18 Several members of the House of Representatives were of the opinion that Congress clearly did not have the power to and should not attempt to direct the Chief Executive to expend funds appropriated by Congress for a specific defense project. The question is this: Can Congress only say that we have too much strength, or can it also say we have too little? A reading of the language: "Congress shall have the power to raise and support armies" has . . . a fairly clear meaning. Raise means get the mensupport means get them the equipment they need. It does not mean to tell them where, or how, or when to use it; that would be the responsibility of the Commander in Chief.19 [T]he language directing the Secretary of the Air Force, and in effect the Commander in Chief, [would be] an unconstitutional invasion of the responsibilities of the Chief Executive. . . . I do not want the Congress to usurp and take from the Chief Executive authority that is his.20 Congress should not command nor should the Congress direct the President on how to arm the military forces for the missions the President decides are in the national interest. The President is the one person in government and in the Nation with all of the facts and intelligence at his fingertips. He is the man who has to make the big decisions on weapons. [C]ongress should carry out the intent of the Founding Fathers who drafted the Constitution, and . . . limit our activity to the traditional and time-tested role of "advise and consent" and "to investigate and propose.' 9721 This legislation proposes to direct the executive department to spend money which the president-right or wrongly-had decided not to spend. I do not believe Congress has the right to so direct the executive, nor should it presume to take that right. . . It is inconceivable to me that Congress should tell . . . a general in the field which weapons to fire. These are the rights and duties of the Executive. We in Congress should neither attempt to assume executive powers nor should we relieve the President of the responsibility for making the right decisions. 22 Several Senators were of the opinion that Congress could and should appropriate funds for a specific defense project which it deemed necessary. However, the Chief Executive possessed the power to ignore Congress and not expend the money appropriated. I believe it is the responsibility of the executive branch to determine what weapons . . . are to be obtained for American defense. But Congress, too, has constitutional responsibilities in the field of defense, and one of them is to make available moneys to the executive branch to utilize for our Military Establishments. . 23 It seems that under the doctrine of the separation of powers, the executive branch can ignore the desires of the legislative branch and refuse to spend the money appropriated for a specific program. . . But regardless of the separation of powers doctrine, it seems to me that Congress, as an independent branch of the Federal Government, has a duty to go ahead and reach its own decision on what is or is not wise with respect to the RS-70 program." 24 If the situation ever comes that our Nation suffers because of a decision by the Defense Department that we will put all our eggs in one basket and will depend on the long-range missiles, and that decision turns out to be a poor one, they will not be able to put the blame on Congress. . . [The Secretary of Defense] does not have to spend the money, but he has the responsibility for not spending it.25 [U]nder article I, section 8, of the Constitution it is our responsibility to decide. It is stated: "The Congress shall have Power To... provide for the common Defense and general Welfare of the United States." What we tried to 18 Id. at 4698 (remarks of Representative Arends). 19 Id. at 4712 (remarks of Representative Pike). 20 Id. at 4714, 4715 (remarks of Representative Ford). 21 Id. at 4716 (remarks of Representative Boland). 22 Id. at 4719 (remarks of Representative Bass). 23 Id. at 10376 (remarks of Senator Kuchel). 24 Id. at 10378 (remarks of Senator Miller). 25 Id. at 15244 (remarks of Senator Robertson). do was to exercise that responsibility. When there is a difference of opinion in the executive branch as to what may be necessary for the common defense, the argument made appealed to me.. that we should provide the funds we believe are necessary for national defense, leaving it to the responsibility of the Executive as to whether he wishes to use them all or not.20 The debate in Congress revealed not only differences in opinion as to whether Congress could require the expenditure of funds appropriated for defense purposes, but also some confusion as to applicable grants of power under the Constitution. There appeared to be no doubt in the mind of the Chief Executive. President Kennedy expressed his opinion as follows in a letter to the Chairman of the House Armed Services Committee: I.. 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 .. for an RS-70 weapons system. I would respectfully suggest that, in place of the word "directed," the word "authorized” would be 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 inplicit 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 Congress. For that reason, Secretary [of Defense] McNamara has indicated to you in a separate letter his willingness to reexamine the RS-70 program and related technological possibilities." A companion letter from the Secretary of Defense stated that a new study of the RS-70 program would be initiated "in the light of recommendations and the representations of the Armed Services Committee," and that if technological developments advanced more rapidly than anticipated "we would then wish to expend whatever proportions of any increase voted by the Congress, these advances . . . would warrant." 9128 The Committee then withdraw its proposed "mandate" to the Secretary of the Air Force.29 Mr. Vinson, the chairman of the House Armed Services Committee, explained on the floor of the House that the word "directed" had been inserted in the bill to show the intent of Congress and to force the Department of Defense to take some action. Once assured that action would be taken the Committee wished to delete this word and substitute "authorized."30 Or as expressed by another Congressman: [Y]esterday two of the most distinguished Americans of our time met together and took a little stroll in the Rose Garden behind the White House . . . and discussed some of the provisions of this bill. so as As a result, the Committee . . . agreed to.. change the wording. to eliminate the word "directed" and to substitute therefor the word "authorized," IV. HISTORICAL CONCEPT OF CONTROL OVER THE ARMED FORCES Control over the armed forces is divided between the Executive and the Congress by the Constitution of the United States. Experience in England and the Colonies had convinced the framers of the Constitution that exclusive control should be vested in neither the executive nor the legislative branches 2 Id. at 15245 (remarks of Senator Saltonstall). 32 27 Id. at 4694. 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. 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, as it has felt free to do in the case of appropriations. 28 Ibid. of the government. The Constitution thus declares that "the President shall be Commander in Chief of the Army and Navy of the United States . . . ."* Congress is empowered: "To lay and collect Taxes.. to... provide for the common defence "To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; "To provide and maintain a navy; "To make Rules for the Government and Regulation of the land and naval Forces; [and] "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." 5 The powers which were to flow from these provisions of the Constitution were discussed by its proponents. An examination of such explanatory documents sheds some light on the authority to be exercised by the President and by Congress with respect to the armed forces. First, the powers intrusted to the Federal Government "to provide for the common defense" were to exist without limitation "because it is impossible to foresee or define the extent and variety. . . of the means which may be necessary to satisfy them." Therefore no "constitutional shackles" were to be imposed, at least upon the Federal Government as a whole, in the exercise of the authorities to raise armies, to build and equip fleets, to prescribe rules for the government of both, to direct their operations, and to provide for their support.3 One of the arguments against the new Constitution was that "provision has not been made against the existence of standing armies in time of peace." " In answer, it was pointed out that "the whole power of raising armies was lodged in the legislature, not in the executive; [and there was] . . . an important qualification even of the legislative discretion, in that clause which forbids the appropriation of money for the support of an army for any longer period than two years. "39 Further, "restraints upon the discretion of the Legislature in respect to military establishments in time of peace would be improper to be imposed, and if imposed, from the necessities of society would be unlikely to be observed." 40 The danger from other countries, and from Indians on the western frontier, showed the "necessity of leaving the matter [of a standing army] to the discretion and prudence of the legislature." " It was intended that restraint on the exercise of legislative authority, in the means of providing for the national defense, would be two-fold. First, the legislature would be obliged to deliberate upon the propriety of keeping a military force at least once in every two years, due to provision limiting appropriations for military purposes to that period of time. If the majority should be disposed to exceed the proper limits, public attention would be roused and measures would be taken by the community to guard against the danger. Second, successive variations in the representative body, produced by biennial elections in both houses, would defeat an attempt to sustain an unwarranted build-up of the armed forces.12 With respect to the President, as Commander in Chief of the army and navy. his authority "would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral of the confederacy.. 2 43 It appears, then, that at the time of the adoption of the Constitution, the power to establish the size and nature of the armed forces was considered to reside in Congress. It was recognized that the President has a qualified negative See generally May, The Ultimate Decision: The President as Commander in Chief 3-19 (1960). 34 U.S. Const. art. II. § 2, cl. 1. 35 U.S. Const. art. I. & 8. 38 The Federalist No. 23, at 147 (Cooke ed. 1961) (Hamilton). Cf. Corwin, The Spending Power of Congress, 36 Harv. L. Rev. 548 (1923). 7 The Federalist, op. cit. supra note 36, at 147. Id. No. 24, at 152 (Hamilton). 39 Id. at 153. (Emphasis added.) 40 Id. at 155. 41 Id. at 157. See Id. No. 25 (Hamilton). 42 Id. No. 26 (Hamilton); id. No. 41 (Madison). 43 Id. No. 69, at 465. See 2 Story, Commentaries § 1492 (5th ed. 1891); cf. Fleming v. Page, 50 U.S. (9 How.) 602 (1850). |