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the abuse of discretionary powers from improper motives or for an improper purpose." 108 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.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. 120

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." 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 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 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.13

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.

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.** 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. 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 col leagues that it is desirable and this must be done in the face of expert testimony that it is not necessaryand 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 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

100 Corwin. The President-office and Powers 351-52 (rev. ed. 1957). See seperally 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.).
100 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 Bodat (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.” 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 have, however, adequate power or means to enforce its authority against unyielding opposition on the part of the President.

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.

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 appropriation's 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.
WILLIAM R. COTTER.

(Reprinted from 11 The American University Law Review 32 (1962)]
THE POWER OF THE PRESIDENT TO IMPOUND
APPROPRIATED FUNDS: WITH SPECIAL
REFERENCE TO GRANTS-IN-AID TO

SEGREGATED ACTIVITIES

(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.

i Senate consideration of S. 1021, providing Federal aid for public schools, began May 16, 1961

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