Executive Impoundment of Appropriated Funds

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." 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. 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."

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. 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 principle 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." 101

91 See, e.g., United States v. Louisville, 169 U.S. 249 (1898); United States v. Price. 116 T.S. 43 (1885). Compare 22 Ops. Att'y Gen. 295 (1902).

Act of March 3, 1905, ch. 1484, § 4. 33 Stat. 1257; Act of Feb. 27, 1906, ch. 510. § 3. 34 Stat. 49.

93 Ch. 18. 42 Stat. 20 (1921) (codified in scattered sections of 31 U.S.C.).

94 Act of Sept. 6, 1950, ch. 896, § 1211, 64 Stat. 765, 31 U.S.C. § 665 (c) (1958).

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.

103

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. 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.1% 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.

105 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).

the abuse of discretionary powers from improper motives or for an improper purpose. "106 Failure to expend funds under some circumstances could well fit within this definition.

Actually, the impeachment of a President will probably never again be attempted except under the most aggravated circumstances. In fact, it has been predicted that the next President to be impeached "will have asked for the extreme medicine by committing a low personal rather than a high political crime-by shooting a Senator, for example."

"107

As a practical matter, Congress would never attempt to force its will as to the expenditure of funds through the power of impeachment. If feeling ran that high in Congress over the matter, the political pressures and public feeling would undoubtedly be sufficient to force the issue.

While the threat of impeachment might compel desired expenditures, it should be noted that impeachment does not accomplish this result, since failure to so act would be the basis for the action itself. All in all, Congress' power of impeachment cannot be considered as a means of requiring defense expenditures.

VIII. POLITICAL CONSIDERATIONS

Certain acts of Congress, such as the Budget and Accounting Act of 1921,108 invite presidential leadership. When Congress gave up primary responsibility for preparing the budget it gave a tremendous boost to the power of the President, not only to control his administration, but to influence the legislative process.1

109

The President's role is to recommend to Congress a unified and comprehensive budget, and to administer the budget as finally enacted. The Executive Budget, with its accompanying message, constitutes a systematic and detailed statement of objectives and means for the guidance of the legislature. With respect to the administration of the budget, the President is the manager of the executive branch. He is responsible for its efficient operation within the framework laid down by Congress.

The President must evolve his program for national defense through the integration of military, budgetary, and diplomatic factors. The President, in whom are combined the roles of chief executive, commander in chief, and conductor of foreign relations, declares to Congress that a given military force, constituted and balanced in a particular fashion, is essential for national security and the support of foreign policy. The great powers of the President must be recognized and vast discretion must be accorded him in their exercise. But at the same time, Congress is clearly within its constitutional rights in exercising finality of decision in regard to the nature and size of the military force. As a general rule, however, Congress should show restraint in this role. It should establish within the executive branch the most effective agencies possible for overall planning and follow their recommendations. For Congress, for all its powers of raising and supporting armies, cannot function as a military staff or as the agency for originating overall plans for national security." The difficulty in securing a large increase in the President's budget for a particular defense purpose is that those who advocate it must also advocate either an increase in taxes, deficit financing, or a drastic cut somewhere else in the budget. None of these alternatives will normally be seen by others as especially attractive.

Should the advocates of a large increase succeed in persuading their colleagues that it is desirable-and this must be done in the face of expert testimony that it is not necessary-and should Congress duly appropriate the sum, there still remains the problem of getting the President to spend it. Congress has no formal power to secure his compliance, and can only hope to build a powerful consensus in support of the increase. If the President has the support of the "experts," Congress has little prospect of effecting major changes in the President's budget."

111

It has been suggested that, in order to help resolve conflict between Congress

106 Corwin, The President-Office and Powers 351-52 (rev. ed. 1957). See generally Concerning the Removal of Officers, 30 Cong. Dig. No. 2, p. 40 (1951).

107 Rossiter, The American Presidency 35 (1956).

108 42 Stat. 20 (1921) (codified in scattered sections of 31 U.S.C.).

109 See generally Rossiter, op. cit. supra note 107, at 65-66.

110 See generally L. Smith, American Democracy and Military Power (1951).

111 See generally Schilling, Hammond & Snyder, Strategy Politics, and Defense Budgets (1962), for an analysis of the interplay of different interests in the preparation of a defense budget, with emphasis on the budget for the 1950 fiscal year.

and the President over responsibility for the making of military policy, "the purposes for which the armed forces [are] . . . used might be divided into those of a long-term character and those which are immediate and of a very temporary effect." " The former permits deliberation, a quality in which the Legislature excels, and the latter requires celerity of action, which the Executive is best able to supply. Considerations of administrative convenience would assign the long-term determinations to Congress acting in conjunction with the President, and reserve the temporary matters for the independent action of the President.

Warner Schilling discusses five problems connected with the defense budget which make it extremely difficult to determine how much to spend :

First is the problem of purpose. Defense preparations have no meaning ex cept in their relationship to the foreign policy purposes of the nation.

The second is that posed by the existence of alternative means. And if it is not always easy to identify the foreign policy purposes for which preparations may be required, it is even more difficult to specify the means which will best serve those purposes.

The determination of the size and kind of forces required would be easier if it were not for the third problem: that caused by the fact that the future is normally uncertain and indeterminate. It is impossible to predict with assurance which of the nation's purposes will be challenged, or how and when. The kind of armament a nation carries may have a most significant influence on the course of its political life. The need to estimate this influence in advance constitutes the fourth major problem in defense budgeting. Nor is it always an easy matter to tell whether additional arms will have a provocative or a deterrent effect, whether they will serve to ease or to exacerbate security problems with other nations.

Last but not least, there is the problem of cost. Security is not the only national goal, nor is defense the only activity that lays claim to the government's budget. Resources allocated to defense are resources no longer available for the satisfaction of other values. Where is the balance to be struck; what constitutes a rational allocation of national resources?

The questions of value involved are, in the final analysis, matters of personal preference. Inevitably, then, there will be differences and uncertainty— regarding the foreign policy goals to be served; regarding the relative utility of the various means available to implement those goals; regarding the shape of the future; regarding the impact on that future of the means under consideration; and regarding the costs it is desirable to incur for defense.

Mr. Schilling concludes that uncertainties and differences of this order can have but one result. Good, intelligent, and dedicated men will be found on all sides of the question of how much and what kind of defense the nation should buy. The fact that questions of value are at stake insures that there can be no one determinate answer to the problem of how much to spend for defense.

There are, accordingly, no individuals who can provide determinate answers: not in the Defense Department, in the State Department, in Congress, or in the Office of the President. Choice is unavoidable; choice among the values to be served, and choice among the divergent conceptions of what will happen if such and such is done.

It is for this reason, says Mr. Schilling, that the defense budget, while susceptible to rational analysis, remains a matter for political resolution. Choices of this order can be made in only one place: the political arena. There the relative importance of values can be decided by the relative power brought to bear on their behalf.

The central fact about the defense budget is that it is a political problem. It turns on the desire and ability of the administration and Congress to undertake the necessary tasks of persuasion."

113

XI. CONCLUSIONS AND RECOMMENDATIONS

It is concluded that Congress does have the authority to determine the size and nature of the armed forces, and to require the expenditure of funds authorized and appropriated for particular defense purposes. Congress does not

112 Koenig, The Presidency and the Crisis 53 (1944). See H.R. Doc. No 2d Sess. 16 (1956), which contains a chronological listing of net! exercise of the powers of the President as Commander in Chief fre cerpts from sources dealing with the exercise of these powers in and therefore proves a convenient reference for such material.

113 Schilling, Hammond & Snyder, supra note 111, at 10-15, 214.

94th Cong..

to the and ex-1955,

the abuse of discretionary powers from improper motives or for an improper purpose.' "100 Failure to expend funds under some circumstances could well fit within this definition.

99 107

Certain acts of Congress, such as the Budget and Accounting Act of 1921.** invite presidential leadership. When Congress gave up primary responsibility for preparing the budget it gave a tremendous boost to the power of the President, not only to control his administration, but to influence the legislative

The President must evolve his program for national defense through the integration of military, budgetary, and diplomatic factors. The President, in whom are combined the roles of chief executive, commander in chief, and conductor of foreign relations, declares to Congress that a given military force, constituted and balanced in a particular fashion, is essential for national security and the support of foreign policy. The great powers of the President must be recognized and vast discretion must be accorded him in their exercise. But at the same time, Congress is clearly within its constitutional rights in exercising finality of decision in regard to the nature and size of the military force. As a general rule, however, Congress should show restraint in this role. It should establish within the executive branch the most effective agencies possible for overall planning and follow their recommendations. For Congress. for all its powers of raising and supporting armies, cannot function as a military staff or as the agency for originating overall plans for national security." The difficulty in securing a large increase in the President's budget for a particular defense purpose is that those who advocate it must also advocate either an increase in taxes, deficit financing, or a drastic cut somewhere else in the budget. None of these alternatives will normally be seen by others as especially attractive.

Should the advocates of a large increase succeed in persuading their col leagues that it is desirable-and this must be done in the face of expert testimony that it is not necessary-and should Congress duly appropriate the sum there still remains the problem of getting the President to spend it. Congress has no formal power to secure his compliance, and can only hope to build a powerful consensus in support of the increase. If the President has the support of the "experts,' Congress has little prospect of effecting major changes in the President's budget."11

It has been suggested that, in order to help resolve conflict between Congress

100 Corwin, The President Office and Powers 351-52 (rev. ed. 1957). See generally Concerning the Removal of Officers, 30 Cong. Dig. No. 2, p. 40 (1951).

107 Rossiter, The American Presidency 35 (1956).

108 42 Stat. 20 (1921) (codified in scattered sections of 31 U.S.C.).

109 See generally Rossiter, op. cit. supra note 107, at 65-66.

110 See generally L. Smith, American Democracy and Military Power (1951).

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