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.' "112 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 except 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 uncertaintyregarding 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. 443, 84th Cong., 2d Sess. 16 (1956), which contains a chronological listing of actions related to the exercise of the powers of the President as Commander in Chief from 1789-1955, and excerpts from sources dealing with the exercise of these powers in the period 1935-1955, and therefore proves a convenient reference for such material. 113 Schilling, Hammond & Snyder, supra note 111, at 10-15, 214, 233. have, however, adequate power or means to enforce its authority against unyielding opposition on the part of the President. The problem of an adequate defense budget and appropriate defense expenditures is primarily political in nature and should be determined on that basis. It is recommended that the power of Congress, in voting on the Executive Budget, be limited so that it might appropriate no more than the Executive requested to run the Government, as organized by Congress through general laws. Congress would retain control over appropriations within the ceiling set by the Executive and could thus reduce or eliminate certain activities as deemed appropriate. Separate and apart from the Executive Budget, Congress could authorize and appropriate funds for added programs desired by Congress but not requested by the Executive. The President could veto such bills, if he so desired. If Congress should override his veto, then the President should carry such programs into effect. This would eliminate undesirable riders to essential appropriations acts and the dubious practice of impounding funds. It would also give the President and Congress an opportunity to resolve disputed matters outside normal budget procedures. DEMOCRATIC CAUCUS CONGRESS OF THE UNITED STATES, HOUSE OF REPRESENTATIVES, Washington, D.C., March 26, 1971. DEAR DEMOCRATIC COLLEAGUE: In accordance with the Caucus rules, we wish to advise you of our intention to propose the following resolution for consideration at the April 21st Democratic Caucus: Whereas unemployment has reached disastrously high levels in many parts of this country; and Whereas the Congress has appropriated such funds as it deems sufficient to stimulate economic development, provide employment opportunities, and construct necessary improvements in our urban and rural areas; and Whereas the President did not subject such appropriations in the Fiscal Year 1971 Budget to veto, but rather, has refused to spend $11 billion of such duly appropriated funds; be it Resolved, that it is the sense of the Democratic Caucus of the House of Representatives that the House majority should seek immediate release of all such appropriated funds by appropriate message to the President; and Resolved further, that the Democratic Caucus of the House hereby urges the House of Representatives to immediately consider a concurrent resolution expressing the sense of the Congress that these funds should be released forthwith. Cordially, ELLA T. GRASSO. [Reprinted from 11 The American University Law Review 32 (1962)] THE POWER OF THE PRESIDENT TO IMPOUND (By Robert E. Goostree)* Debate in the first session of the present Congress has raised the question of the power of the President or other executive officers to withhold funds appropriated for Federal grants-in-aid to impacted school areas, when the impacted areas operate segregated schools. The debate centered about a proposed amendment to the school aid bill which would have forbidden spe A.B., Southwestern; M.A., Ph.D., State University of Iowa. Professor, School of Government and Public Administration, American University. 1 Senate consideration of S. 1021, providing Federal aid for public schools, began May 16, 1961 2 cifically the impounding of grant-in-aid funds to segregated school districts. The amendment was defeated, perhaps upon the assurance of Secretary Abraham A. Ribicoff of the Department of Health, Education, and Welfare that neither he as Secretary nor the Commissioner of Education possessed power to withhold funds for this reason. The question of the constitutional power (or duty) of the President to order impounding by the Bureau of the Budget of funds for segregated school districts arose only in passing, in the form of a research report favoring such power prepared by the American Law Division of the Legislative Reference Service, and inserted into the Congressional Record during the debate. This report was clearly drawn at the request of a proponent of the power and presented only arguments supporting the power. The issue is, of course, an aspect of the broader constitutional question of the President's power under any circumstances to withhold funds appropriated for governmental functions authorized by law. No such question exists where the appropriation act or the authorizing statute specifically delegates discretion to the President or another executive officer in regard to expenditure: the very grant of discretion confers power to spend or not to spend. Where no such delegation of discretion exists, however, is this power to be found either in the Constitution or in general statutory enactments about executive budgetary control? The broad issue as to whether an appropriation is a mandate to spend or merely permission to spend is not clarified by the Constitution and has been the subject of judicial scrutiny only in limited aspects. Apart from legislation regarding executive control of the budget, a claim that an appropriation is merely permissive or that the President may impound appropriated funds for reasons of his own would seem to rest upon the Constitutional requirement that the President "take care that the laws are faithfully executed" or upon an inherent executive power. It would seem that both possible bases for this claimed Presidential power have been eliminated by Supreme Court decisions," although no case is fully dispositive of the question. 5 On the other hand, strong arguments can be made upon the basis of other Supreme Court decisions for the existence of a general power to withhold funds, either totally or in part, as a result of other aspects of the Executive power. Finally, regardless of the existence of the power to impound as a general proposition, it may well be that specific Constitutional prohibitions on activity by the National Government may necessarily imply a Presidential power to impound funds the spending of which would in effect amount to a violation of the prohibition. This aspect of the problem in its baldest form is: When Congress has authorized and appropriated funds to be spent in aid of segregated schools, does a national constitutional policy supporting desegregation require and permit the President to impound such funds? It would seem that any power to impound either must rest upon statutory authority, or upon authority to be derived from the "execution of the laws" clause, or must be an inherent Executive power. No serious contention can be made that the President's power as commander-in-chief could confer uopn him the power to impound funds for non-military purposes. The unexercised treaty power, similarly, can have no relation to this matter. No exercise of the power of the President to issue reprieves and pardons is involved, nor is there a question of the exercise of the President's appointment power. Examination of the facets of Presidential power in the area involves, then, consideration of existing statutory authority to impound funds, of the possible authority to be derived from the "execution of the laws" clause of the Constitution, of the potential authority to impound as an inherent Presidential power, and of authority to impound as a derivative of Constitutional prohibitions, especially of the equal protection and due process clauses and their relation to expenditures for purposes of segregation. 2107 Cong. Rec. 7522 (daily ed. May 16, 1961). The proposed amendment provided, in part, that "no department, agency, officer of the United States shall withhold funds appropriated under authorization of this title from any State or School otherwise eligible because of any law, policy or practice of the State or school with regard to segregation or desegregation of the races in the schools." 3 Id. at 7807 (daily ed. May 18, 1961). * Id. at 7522-24 (daily ed. May 16, 1961). 5 U.S. Const. art. II, § 3. 6 Principally, Kendall v. United States ex rel. Stokes, 12 Pet. (37 U.S.) 524 (1838) and Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579; 26 A.L.R.2d 1378 (1952). 7 Principally, In re Neagle, 135 U.S. 13 (1890) and United States v. Midwest Oil Co.. 236 U.S. 459 (1915). 60-337-71-39 I. STATUTORY AUTHORITY FOR PRESIDENTIAL IMPOUNDING The control which the President exercises over the budget for the Executive Branch is statutory in origin, having been established by the Budget and Accounting Act of 1921. This Act provided for Presidential control over requests for funds for activities of the Executive Branch, but made no provision for such Presidential control over the expenditure of appropriated funds, regardless of whether such funds were requested or were in excess of Presidential requests. For twenty years, the only formal Presidential response to appropriations "not in accord with the President's program" was by veto, if any control was to be had over the amounts appropriated. Even before the Budget and Accounting Act, however, the Anti-Deficiency Acts of 1905 and 1906 had established the requirement of agency apportionment of total appropriations into quarterly amounts, providing that no more than one-quarter 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 within the appropriation made for that purpose." The first impounding of appropriated funds occurred in 1941, when President Roosevelt ordered the impounding of funds appropriated for public works not thought to be of an essential defense nature.' Congressional protest was unavailing. 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 most important of such incidents occurred in 1949 when President Truman ordered the withholding of $615,000,00 which had been appropriated in excess of his request for a forty-eight group Air Force." With this controversy historically recent, impounding to prevent deficiencies and to effect economies in governmental operations was authorized by the General Appropriations Act of 1951." This provision that "[R]eserves may be established to provide for contingencies, or to effect savings whenever savings are 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" 1 remains in force in 1961. The House Appropriations Committee specified that the bill was designed "to hold administrative officials responsible for the administration of an activity for which an appropriation has been made" by assuring that they "should bear final responsibility for rendering all necessary service with the smallest amount possible within the ceiling figure fixed by the Congress." 14 The purpose of the reserve section, according to the Committee, is "to require careful apportionment of all types of funds expended by Federal agencies and efficient administration of the Government's business." 15 The outer limits of statutory authority of the President or Executive officers are described by these provisions for apportionment and reserves. It would seem clear that in the eyes of Congress an appropriation is more than a mere authorization to spend. Rather, when taken together with the statutory authorization of a program for which the appropriation is made, it is a mandate to perform the service for which the appropriation is made, with due regard to efficiency and economy. Impounding for reasons other than economy and efficiency has no statutory sanction as a part of the general process of budget execution. Instances in which it has occurred, either as regards an entire appropriation or in terms of the reduction of the level of expenditure for a program, have been met with Congressional protest. That impounding between 1941 and 1961 has not yet been subjected to judicial scrutiny is undoubtedly the result of lack of standing to sue on the part of agencies to which funds were denied.18 8 Budget and Accounting Act, 42 Stat. 20 (1921), 31 U.S.C. §§ 1. 2, 11, 13-24, 41-44. 46-50, 52-57. Anti-Deficiency Act, 33 Stat. 1257 (1905). Also see Williams, The Impounding of Funds by the Bureau of the Budget 6. 10 Williams, op. cit., supra at 8-20. 11 Id. at 30. Most recently, President Kennedy on October 28, 1961, ordered the impounding of some $780,000,000, appropriated in excess of his budget request for B-52 and B-70 bombers. Congressional protest from Senator John Stennis, Chairman of the Military Preparedness Subcommittee of the Senate Armed Services Committee. was immediate. Washington Star, October 28. 1961, p. 1. 12 General Appropriation Act, 64 Stat. 595 (1951), § 1211; 31 U.S.C. § 665 (c). 13 31 U.S.C. § 665 (c) (2). 14 H.R. Rep. No. 1797, 81st Cong., 2d Sess. 9 (1951). (Italics supplied). 15 Ibid. 18 Supra notes 10 and 11. The grant-in-aid to states or localities for purposes previously authorized by law does not differ in kind from the appropriation which is spent directly by an agency of the national government. The present system of monetary grants is largely a twentieth-century development, but grants of land to the States for public purposes are contemporaneous with the Constitution itself. The Congressional authority to grant land rests upon the power to dispose of territory or other property of the United States." Authority for grants of money to the States is derived from the power of Congress to pay the debts and provide for the common defense and general welfare.18 Challenges of the constitutionality of grants-in-aid were rebuffed at the outset by denial in Massachusetts v. Mellon and Frothingham v. Mellon to states and to individuals of standing to sue for this purpose." This doctrine has been applied to uphold the legality of a federal grant for the purpose of constructing a municipal power plant to operate in competition with the plaintiff.20 The only exception to the Mellon rule has been permitted on the theory that a grant-in-aid statute creates a legal right to receive granted funds and that consequently a state has standing to sue to obtain such funds.21 19 The power of Congress to impose conditions upon grants-in-aid was inferentially upheld in Steward Machine Co. v. Davis" and was specifically approved in Oklahoma v. Civil Service Commission.23 The requirement of the Hatch Act for abstinence from partisan political activity by persons administering federal highway grants was held to be a condition to continued receipt of the grant. "While the United States is not concerned with, and has no power to regulate, local political activities as such of state officials, it does have power to fix the terms upon which its money allotments to states shall be disbursed." " Under the holding of the Oklahoma case, it would seem that a state or locality claiming to have complied with conditions for the receipts of grants-in-aid would have standing to sue in the Federal courts for vindication of a legal right. "Congress may create legally enforceable rights where none before existed. Payments were not made at the unfettered discretion of a federal disbursing officer or . agency, but according to statutory standards, compliance with which entitled Oklahoma to receive her proper share of the Federal appropriations.' Executive action to withhold grant-in-aid funds is subject to adjudication as to the existence of authority to withhold other than (1) for purposes of economy and efficiency, (2) in the exercise of delegated discretion, or (3) in the enforcement of a Congressionally-imposed condition precedent to receipt of the grant. II. THE POWER TO EXECUTE THE LAWS AND AUTHORITY TO IMPOUND The President is empowered and required to take care that the laws are faithfuly executed." Whether this Constitutional provision conferred powers beyond the enumerated powers of the President, and whether it vested in him discretion as to the execution of Acts of Congress was argued in Kendall v. United States ex rel. Stokes." Postmaster General Amos Kendall disallowed claims of Stokes for carrying the mails. Congress passed an act directing Kendall to credit claimant with the amount due, as determined by the Solicitor of the Treasury. Kendall again refused to pay the claim, contending that only the President, under the power to see that the laws are executed, could require that he pay the claims. The Supreme Court upheld a mandamus by the Circuit Court of the District of Columbia, ordering the payment, holding that the President was not empowered to dispense with the operation of law upon a subordinate executive officer. "The executive power is vested in a president; and as far as his powers are derived from the constitution, he is beyond the 17 U.S. Const. art. IV. § 3. par. 2. 18 U.S. Const. art. I, § 8. cl. 1. 19 Massachusetts v. Mellon, Frothingham v. Mellon, 262 U.S. 447 (1923). Many instances of impounding of appropriated funds for governmental operations other than for grants-in-aid could not be litigated because of lack of standing to sue on the part of a governmental agency. More remote potential beneficiaries would lack standing under Massachusetts v. Mellon. 20 Alabama Power Co. v. Ickes, 302 U.S. 464 (1938). 21 Oklahoma v. United States Civil Service Commission, 330 U.S. 127 (1947). 22 301 U.S. 548 (1937). 23 Oklahoma v. United States Civil Service Commission, supra note 21. 24 Id. at 143. 25 Id. at 136. 28 U.S. Const. art. II, § 3. 27 12 Pet. (37 U.S.) 524 (1838). |