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of any Presidential purpose to defy Congress or act in any way inconsistent with the legislative will." 63
Mr. Justice Jackson, concurring with the majority opinion, remarked on the “poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually preesnt themselves." 04 He suggested that "Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress." 65 Justice Jackson then listed the situations in which a President may doubt, or others may challenge, his powers and indicated the legal consequences of the factor of relativity to the powers of Congress :
"1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. ... If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. ...
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
"3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” 68
The latter situation (3), as discussed by Mr. Justice Jackson, more nearly relates to the RS-70 and similar controversies.
Mr. Justice Jackson then noted that "the Constitution expressly places in Congress power 'to raise and support Armies' and 'to provide and maintain a Nary.' ... This certainly lays upon Congress primary responsibility for supplying the armed forces. Congress alone controls the raising of revenues and their appropriation and may determine in what manner and by what means they shall be spent for military and naval procurement."87
The issues considered in the Youngstown case are similar in many respects to the issue involved in the matter of utilizing funds to implement Congressional defense policies. Without doubt Congress is empowered to appropriate funds for defense purposes. This is the same basic consideration involved in the Youngstown case, wherein Congress had provided methods other than those emploved by the President for the settlement of labor disputes. Once Congress has enacted laws relative to the utilization of appropriated funds for defense purposes, it is the President's duty to see that they are "faithfully executed." The Constitution does not subject the law-making power of Congress to presidential control, except for the veto process. The fact that Presidents in the past may have overridden congressional appropriations does not deprive Congress of its constitutional authority.
The matter of Congressional appropriations for defense purposes lies in the third category of congressional-presidential relationships set forth by Justice Jackson. “Exclusive presidential control" cannot be sustained and the President is not empowered to impose conditions upon the exercise of congressional authority in this field. The weight of authority is against the existence of an inherent presidential power to impound appropriated funds."
03 Id, at 703 (Vinson, C.J., dissenting). 64 Id. at 634 (concurring opinion). 63 Id. at 635 (concurring opinion). 61 Id, at 635-38 (concurring opinion). 47 T. at 643 (concurring opinion). (Emphasis omitted.) 88 Corwin. The Constitution and What It Means Todar 30 (1st atheneum ed. 1963).
0 See Kauper. The Steel Seizure Case : Congress, the President and the Supreme Court, 51 Mich. L. Rev. 141 (1952).
70 Goostree. The Power of the President to Impound Appropriated Funds: With Special Reference to Grants-In-Aid to Segregated Activities. 11 Am. I.L. Rev. 32, 42 (1962).
VI. THE AUTHORIZATION AND APPROPRIATION OF FUNDS The general theory underlying the Constitution is that Congress shall be responsible for the determination and approval of the fiscal policies of the Nation and that the Executive shall be responsible for their faithful execution." This division of authority was well stated by President Wilson in a message to Congress on May 13, 1920 :
*The Congress and the Executive should function within their respective spheres . ... The Congress has the power and the right to grant or deny an appropriation, or to enact or refuse to enact a law; but once an appropriation is made or a law passed, the appropriation should be administered or the law executed by the executive branch of the Government." *2
Congress then, has the final responsibility, subject to Constitutional limitations and the President's veto power, for deciding which activities are to be undertaken by the Government and the amount of money to be spent on each. The President's role is to recommend to Congress a unified and comprehensive budget and to administer the budget as finally enacted.13
A distinction must be made between the authorization and the actual appropriation of funds for a specified purpose. As indicated previously," an act appropriating funds for defense purposes serves to implement a preceding authorization act passed by Congress.
Because of some extremely broad authorizations of appropriations for the procurement of aircraft, missiles, and vessels that were granted in the 1940's, the Committee on Armed Services came close to legislating away their major responsibilities in the shaping of defense legislation. While the Committees on Armed Services retained jurisdiction over manpower legislation, military pay measures, and military construction authorizations, only a small part of the defense program for a fiscal year came before these Committees for legislative review. As a result, the Appropriations Committees alone gave substantial consideration to the over-all defense budget.”
In the realization that a preponderant part of the defense program was based on major weapons, the Committee proposed that appropriations for procurement of major weapons should be subject to new authorizations."
Public Law 86–149 19 was the first law requiring congressional authorization for appropriations for the procurement of aircraft, missiles, and naval vessels. This law was subsequently modified by Public Law 87-436 80 to require similar authorization for the research, development, test, and evaluation associated with aircraft, missiles and naval vessels.
Public Law 88–174 extended this authority to require authorization of appropriations for all research, development, test, and evaluation carried on by the Department of Defense. The law today reads as follows:
"No funds may be appropriated after December 31, 1960, to or for the use of any armed force of the United States for the procurement of aircraft, missiles, or naval vessels, or after December 31, 1962, to or for the use of any armed force of the United States for the research, development, test, or evaluation of aircraft, missiles, or naval vessels, or after December 31, 1963, to or for the use of any armed force of the United States for any research, development, test, or evaluation, unless the appropriation of such funds has been authorized by legislation enacted after such dates.81
It seems clear that an authorization of funds for a specific defense purpose is not considered to eliminate the exercise of discretion as to either the ar
71 Report of the President's Committee on Administrative Management at 15 (1937). 72 Ibid.
73 Committee on Organization of the Executive Branch of the Government Report on Budget and Accounting in the U.S. Government at 12-13 (1955),
74 See note 12 supra.
78 See generally Whelan, Legislative and Regulatory Activity in Research and Development Contracting 59 (1963). "
77 For an exhaustive study on the consideration of defense budgets by the Appropriations Committees, see Huzar. The Purse and the Sword (1950).
78 H.R. Rep. No. 1138. 88th Cong., 2d Sess. (1963).
propriation or the expenditure of funds for that purpose. The meaning that Congress attaches to the term is indicated in the following colloquy which occurred on the floor of the House when it was determined to "authorize" funds for the RS-70:
"Mr. Brown:... there has been a great deal of discussion throughout the years as to what the word "authorized' really means, in connection with legislation, when the President is authorized to do something. But the usual conclusion is that the will of the Congress is expressed in using the word 'authorized,' and it also expresses the desire of the Congress. ...
"Mrs. St. George: In other words, it means a pious hope and sometimes'Hope deferred, maketh the heart sick'; is that correct? 83
"Mr. Brown: It goes a little further than that. I would suggest, if you check the records, that while we authorize many expenditures, the money is not always appropriated, and even if so, the expenditures are not always made by the President. But usually when the word "authorized' is used in legislation, the Chief Executive accepts it as more or less expressing the desire and the will of the Congress, and quite often he goes along with that. . ..44
"Mr. Cannon: ... All Members of the House understand that the word `authorized' as used in this connotation, means 'permitted'-and nothing more.
Although an authorization may be considered as only constituting permission to expend funds for a particular purpose, an appropriation of funds implies a directive that such funds be expended to effect the purpose indicated.
An argument that the President's authority as Commander in Chief gives him power to disregard a legislative mandate to use appropriated funds for specified purposes which Congress has found necessary for national defense, would seem equally applicable to any other legislation relating to the armed forces. Yet Congress has enacted an enormous amount of legislation on the subject and the Supreme Court has, from time to time, struck down executive action found to be in conflict with statutory provisions.Sc "It is recognized that Congress may grant or withhold appropriations as it chooses, and when making an appropriation may direct the purposes to which the appropriation shall be devoted. It may also impose conditions with respect to the use of the appropriation, provided that the conditions do not require operation of the Government in a way forbidden by the Constitution. ..." 87 The executive branch is limited by the appropriation with respect to the amount, purpose and period of availability of the money made available for obligation and expenditure.88
The Naval Appropriation Act of March 3, 1909, provided that no part of the appropriations therein made for the Marine Corps would be expended unless officers and enlisted men of that Corps served on board certain vessels in detachments of not less than eight percent of the enlisted men of the Navy on such vessels.80
"Congress in making appropriations has the power and authority not only to designate the purpose of the appropriation, but also the terms and conditions under which the executive department of the government may expend such appropriations. ...
"The purpose of the appropriations, the terms and conditions under which said appropriations were made, is a matter solely in the hands of Congress and it is the plain and explicit duty of the executive branch of the government to comply with the same. Any attempt by the judicial branch of our government to interfere with the exclusive powers of Congress would be a plain invasion of the powers of said body conferred upon it by the Constitution of the United States." 90
82 108 Cong. Rec. 4691 (1962) (remarks of Representative Brown).
se See. e.g.. Harman v. Brucker. 355 U.S. 579 (1958), where the action of the Secre. tary of the Army in issuing less than honorable discharge to two soldiers was held Inconsistent with law
87 Brownell, supra note 50, at 3.
& Chermak, Financial Control : Congress and the Executive Branch. 17 Mil. L. Rev. 83 (1962).
80 Act of March 3, 1909, ch. 255. 35 Stat. 773. This provision was considered constitutional, 27 Ops. Att'y Gen. 259 (1909).
0 Spaulding v. Douglas Aircraft Co., 60 F. Supp. 985, 988 (S.D. Cal. 1945) F.2d 419 (9th Cir. 1946).
The Supreme Court has also 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."
Although none of these decisions squarely decide the point, they do not lend any countenance to the proposition that the President can lawfully disregard a direction embodied in law that certain measures be taken for national defense and that specified appropriations be spent for that purpose.
It may be claimed that Congress, by statute, has authorized the President to exercise discretion as to whether funds appropriated for particular defense purposes should be expended or impounded. An examination of legislation pertaining to appropriations does not support this contention.
The Anti-Deficiency Acts of 1905 and 1906 established the requirement of agency apportionment of total appropriations into quarterly amounts, providing that no more than one-fourth of the total appropriation might be expended in any quarter of the fiscal year.92 This device was later used to effect savings when the required purpose was accomplished for a sum less than the amount of the appropriation.
The Budget and Accounting Act of 1921 provided for presidential control over requests for funds for activities of the executive branch." No provision was made, however, for such presidential control over the expenditure of appropriated funds, regardless of whether such funds were requested or were in excess of presidential requests.
Impounding of appropriated funds to prevent deficiencies and to effect economies in governmental operations was authorized by the General Appropriations Act of 1951.94 This Act provided, in part, as follows: "In apportioning any appropriation, reserves may be established to provide for contingencies, or to effect savings whenever savings are made possible by or through changes in requirements, greater efficiency of operations, or other developments subsequent to the date on which such appropriation was made available. ..
Since this section appears to grant the Executive great latitude with respect to the impounding of appropriated funds, inquiry should be made as to legislative intent. The House Committee on Appropriations stated that the "appropriation of a given amount for a particular activity constitutes only a ceiling upon the amount which should be expended for that activity." Officials responsible for the administration of an activity for which an appropriation was made "bear the final burden for rendering all necessary service with the smallest amount possible within the ceiling figure fixed by the Congress." ** The purpose of the Act is to "require careful apportionment of all types of funds expended by Federal agencies and efficient administration of the Government's business." 98
The Committee noted that in signing the National Military Appropriations Act for 1950, the President issued a statement indicating objections to the action of Congress in increasing funds for the Air Force, and directing the Secretary of Defense to place in reserve the amounts provided by Congress for increasing the Air Force structure. In this regard it was stated that "it was not the purpose of the Congress in providing funds for the Air Force ... in excess of budget estimates to establish or permit the President or the Secretary of Defense to establish reserves. ...90 In the minds of the Committee. this action "amounted to an item veto, a power not possessed by the President." 100
"It is perfectly justifiable and proper for all possible economies to be effected and savings to be made, but there is no warrant or justification for the thwarting of a major policy of Congress by the impounding of funds. If this princi. ple of thwarting the will of Congress by the impounding of funds should be accepted as correct, then Congress would be totally incapable of carrying out its constitutional mandate of providing for the defense of the Nation." In
ml See, eg., United States v. Louisville, 169 U.S. 249 (1898); United States v. Price. 116 T.S. 43 (1885). Compare 22 Ops, Atty Gen. 295 (1902).
99 Act of March 3, 1905, ch. 1484, § 4. 33 Stat. 1257 ; Act of Feb. 27, 1906. ch. 510. & 3. 34 Stat. 49.
P3 Ch. 18. 42 Stat. 20 - (1921) (codified in scattered sections of 31 U.S.C.).
Certainly it was not the intent of Congress that the Executive should be enabled to impound funds appropriated by Congress for defense purposes. 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.102
An appropriation act may delegate discretion to the President or another executive officer in regard to expenditure. Where no such delegation exists, however, the appropriation should be considered a mandate, rather than mere permission to spend.
The President cannot dispense with the execution of the laws, under the duty to see that they are executed. To hold otherwise would be to confer upon him a veto power over laws duly passed and enrolled. To accord discretion to a President as to what laws should be enforced and how much would enable him to interpose a veto retroactively.
VII. ENFORCING CONGRESSIONAL AUTHORITY If we may conclude that Congress has the constitutional right to require the Defense Department to expend appropriated funds for specified defense purposes, the question remains as to how that requirement can be enforced. Merely having the right is not sufficient if it cannot be effectively exercised.
It is doubtful that enforcement could be had through the courts. The fact that no suit has been instituted as a result of the many recent instances of the impounding of funds indicates a lack of standing to sue. The nature of acts appropriating funds for defense purposes is seldom such as to give rise to a justiciable controversy.
The executive veto does not include the power to veto a part of a bill. The lack of such a power in the President has enabled Congress at times to bring pressure on a president, thus enabling the enactment of legislation that the President might otherwise veto. That is, a measure desired by Congress may be included as a proviso, or attached as a rider, to a bill desired by the executive branch.14 The undesired portion of the act must then be accepted, or the entire measure rejected by the President. In this manner, Congress may on occasion enforce the expenditure of funds for a particular purpose. This procedure is, of course, subject to acquiescence on the part of the President. If the President vetoed the bill because of the objectionable portion, it might be difficult to obtain sufficient support in Congress to override the veto. This, then, is not a very adequate means whereby Congress may require certain expenditures, particularly if the matter of defeating the measure is of sufficient importance to the Executive.
The strongest check which the legislative branch holds on the executive branch is, of course, impeachment. The Constitution provides that "the President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” 104
Throughout the history of the Nation only twelve impeachment trials have been held, resulting in the conviction of four members of the judiciary but not one executive officer. In the only case of the impeachment of a President, that of President Johnson in 1868, the Senate declined to convict by a margin of one vote.
A problem would be to determine whether the refusal to expend funds in implementation of a defense measure enacted by Congress could be considered a "high crime" or "misdemeanor.” The manager of the impeachment of President Johnson contended that "an impeachable high crime or misdemeanor is one in its nature or consequences subversive of some fundamental or essential principle of government or highly prejudicial to the public interest, and this may consist of a violation of the Constitution, of law, of an official oath, or of a duty, by an act committed or omitted, or, without violating a positive law, by
102 Goostree, supra note 70. at 47.
103 See, e.g., Act of July 13, 1955, ch. 358, 69 Stat. 304, which appropriated funds for army maintenance and operations and contained the following proviso: "Provided. That during the fiscal year 1956 the maintenance, operation, and availability of the Army-Navy Hospital at Hot Springs National Park, Arkansas, and the Murphy General Hospital in Boston, Massachusetts, to meet requirements of the military and naval forces shall be continued."
104 U.S. Const. art. II. $ 4.
106 Staff of House Comm. on Gov't Operations, 87th Cong.. 2d Sess.. Extent of the Control of the Executive by the Congress of the United States at 27 (Comm. Print 1962).