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economic conditions and with respect to programs and activities in which exact standards or levels of operation are not and cannot well be prescribed by statute." .
One incident which occurred during that period seems particulrly relevant for the problem at hand. Section 9 of the Rural Post Roads Act of July 13, 1943, c. 236, 57 Stat. 560, 563, provided :
"No part of any appropriation authorized in this Act shall be impoundert or withheld from obligation or expenditure by any agency or official, unless the War Production Board shall certify that the use of critical materials for additional highway construction would impede the conduct of the war.” This section was based on an even broader proposed rider which had been added to the bill in the Senate for the avowed purpoes of eliminating the authority of the Bureau of the Budget to impound highway funds, 89 Cong. Rec. 6313-6316, and which was narrowed in conference because the Senate provision "was found wholly objectionable by all the managers on the part of the House." See H. (Conf.) Rept. 677, 78th Cong., 1st sess., p. 4 and 89 Cong. Rec. 7384–7386. In adopting section 9, Congress seems to have recognized that authorizing legislation does not compel the executive branch to obligate or to expend highway funds.
There is nothing in Title 23 of the United States Code which imposes upon the executive branch the duty to approve all qualifying projects for which apportioned funds are available.
A. 23 U.S.C. 118, which provides that apportioned funds "shall be available for expenditure under the provisions of this title," does not give the States any inchoate right to the apportioned funds. The gist of this section is that apportioned funds are available for obligation (see note 2, supra) for a period of two years after the end of the fiscal year for which the sums are authorized. It does not mean that the Secretary must approve all projects which comply with the technical requirements of 23 U.S.C. 109 as soon as funds are apportioned. Such interpretation of the statute would be inconsistent with the pay-as-you-go principle underlying the Federal-aid highway program. Thus, when it appears that the balance in the Highway Trust Fund is or will be less than the sums apportioned among the States on the basis of the authori. zations contained in section 108 (b) of the Federal-Aid Highway Act of 1956, as amended, the Secretary must limit the approvals of projects under 23 U.S.C. 106(a) to a figure within the sums estimated to be actually "available for expenditure." I
It is not consistent with this approach to contend that the States have vested rights in the funds apportioned prior to the actual approval of projects under 23 U.S.C. 106(a). It is approval of a project under that section which constitutes the contractual obligation of the United States. No provision of the act gives any State a vested right to the apportioned funds prior to such approval.
B. I am aware of 23 U.S.C. 101 (b), in which Congress declared that it is in the national interest to accelerate the construction of the Federal-aid highway systems; that the prompt and early completion of the National System of Interstate and Defense Highways is essential to the national interest; and that it is the intent of Congress that the Interstate system be completed as nearly as practicable over the period of availability of the fifteen years' appropriations (through the fiscal year ending June 30, 1972) to which the section refers. I do not consider that these policy declarations contain any mandate which is inconsistent with the deferral on the approval of Federal-aid highway projects involved here.
23 U.S.C. 101 (b) does not use any mandatory language. It is well-established that such statements of policy do not add to or alter specific operative provi. sions of a statute. Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 202 (1962); Lauf v. E. G. Chinner & Co., 303 U.S. 323, 330 (1938); Price v. Forrest, 173 U.S. 410, 427 (1899); Sutherland, Statutory Construction (3d Ed., 1943), sec
* This letter 1s reproduced in part in First Supplemental National Defense Appropriation, 1944, Hearings before a Subcommittee of the Senate Committee on Appropriations, 78th Cong., 1st sess. on H.R. 3598, p.739.
o Congress is well aware of this "reimbursement planning" or "contract control" procedure. See e.g., S. Rept. 903, 86th Cong., 1st sess., p.25 (Minority views); 113 Cong. Rec. H1023 (Dally Ed., February 6, 1967).
tion 4820. Language of this type is a form of congressional guidance and not a directive. It reflects congressional understanding that during the course of a long-range program, situations may arise in which the stated considerations of policy might not be decisive. See 37 Op. A.G. 546, 548; 42 Op. A.G. No. 15, pp. 8-9 (October 9, 1963); id., No. 20, p. 3 (April 26, 1965).
The choice by Congress of hortatory language in 23 U.S.C. 101 (b) also seems to be indicative of its awareness of the point stressed by President Roosevelt to the effect that there are many programs and activities, especially in times of rapid changes in general economic conditions, in which it is imposible to prescribe exact statutory standards and levels of operation.
Moreover, since the purpose of action here is not to reduce the total amount of the funds to be deroted to the Federal-aid highway program but merely to slow the program for a limited period," hopefully it will have no adverse etfect on the completion of the program was nearly as practicable" by the end of the period envisaged in 23 U.S.C. 101 (b).
C. It has been suggested that the highway taxes imposed by the High way Revenue Act of 1956 are paid into the Highway Trust Fund established by section 209 of that act, and that the executive branch therefore has the fiduciary duty to proceed with the construction of highways to the full extent permitted by the assets in that Fund.
As noted above, the proceeds of the highway taxes are not paid directly into the Fund; Congress merely has appropriated into the Fund amounts equivalent to specified percentages of certain taxes received in the Treasury. The assets in the Fund are neither directly nor automatically available for the payment of the Federal contributions to the States. The disbursements out of the Fund require appropriations under section 209 (f), and such appropriations cannot exceed the authorizations provided for the Federal-aid highway program.
The Highway Trust Fund thus is, in effect, a device designed to identify an amount equivalent to certain designated taxes as a ceiling on the sums available for highway construction. As indicated above, apropriations for Federal-aid highways are subject to a double limitation: they may not exceed the Federal-aid highway authorizations, nor the amount available in the Fund. As a limitation on the sums which may be spent under the Federal-aid highway legislation, the Fund is functionally akin to the conventional appropriation and, as such, it constitutes an authority rather than a mandate. While the executive branch has normally expended substantially all the monies made available by appropriations, there is no duty to spend the entire amount that is available. In the instant situation, the Executive has determined that project approvals should be limited during the current fiscal year so as to reduce the prospective level of expenditures from the Highway Trust Fund. This is a determination which the Executive is fully empowered to make.
I conclude that the recent limitation on the Federal-aid highway funds which may be obligated during the current fiscal year was a valid exercise of Executive authority. Sincerely
RAMSEY CLARK, Acting Attorney General.
[Decision No. B-160891)
COMPTROLLER GENERAL OF THE UNITED STATES,
Washington, D.C., February 24, 1967. Hon. JENNINGS RANDOLPH, Chairman, Committee on Public Works, U.S. Senate.
DEAR MR. CHAIRMAN : Reference is made to letter of February 15, 1987, from you and the Chairman of the Committee on Public Works, House of Representatives, raising a question of the legal authority of the Executive Branch
• Under 23 U.S.C. 118(b) apportioned funds remain avallable for two years after the close of the fiscal year for which authorized
to withhold funds authorized for expenditure by the States under the FederalAid highway program and financed from the revenues dedicated to the Highway Trust Fund.
At the outset we are certain you understand that any opinion expressed by us in this matter is advisory only. The General Accounting Office is responsible for seeing that appropriations made by the Congress are disbursed in accordance with the laws enacted by the Congress and that receipts are properly accounted for. The question raised in your letter, however, does not involve the validity of an obligation or expenditure or the proper accounting for receipts but involves the legal authority of the Executive Branch to impound or withhold from obligation and from expenditure funds appropriated by the Congress. Consequently, it is not within our jurisdiction to determine authoritatively whether the Executive Branch is legally required to obligate and spend funds appropriated by the Congress. In our opinion this particular question can only be resolved with any finality by the courts.
Due to the time factor involved we have not had an opportunity to obtain from the Department of Commerce a report of the facts involved in the deci. sion to withhold from obligation a part of the funds under the Federal-Aid highway program. From information appearing in news articles we understand that in line with the President's directive to all departments and agencies to cut nonmilitary spending as much as possible without harming essential programs in order to reduce inflationary pressures, the Bureau of Public Roads reduced amounts which would have otherwise been available to the States for award of contracts in fiscal year 1967 under the Federal-Aid highway program.
Section 103(e), title 23, United States Code (Federal-Aid Highway Act of 1958) provides that:
"The Secretary shall have authority to approve in whole or in part the Federal-aid primary system, the Federal-aid secondary system, and the Interstate System, as and when such systems or portions thereof are designated, or to require modifications or revisions thereof. No Federal-aid system or portion thereof shall be eligible for projects in which Federal funds participate until approved by the Secretary.'
Section 104 (b) of title 23, requires that the Secretary of Commerce apportion the sums authorized to be appropriated among the several States.
Section 104 (e) of title 23, United States Code, provides that on or before January 1 preceding the commencement of each fiscal year, the Secretary of Commerce shall certify to each State the sums which he has apportioned thereunder to each State for such fiscal rear.
Section 105 provides that as soon as practicable after the apportionments have been made for any fiscal year, a State desiring to avail itself of the benefits of title 23, shall submit a program or programs of proposed projects to the Secretary for his approval. Section 105 further provides that the Secretary shall act upon programs submitted to him as soon as practicable after submitted and that he may approve a program in whole or in part.
Section 106 provides that as soon as practicable after a State program has been approved, the State shall submit surveys, plans, specifications and estimates of each proposed project included in an approved program. Section 100 further provides that the Secretary's approval of any project shall be deemed a contractual obligation of the Federal Government for the payment of its proportional contribution thereto. In view of the language of section 106 we are of the opinion that unless and until the Secretary approves a project the United States will not have incurred a contractual obligation to a State for the Federal share of such project.
We understand that the decision to reduce amounts which would otherwise be available for obligation for proposed Federal-aid during the fiscal year 1967, applies only to projects which have not been approved and will not affect projects which have been approved by the Secretary.
The permanent provisions of law governing the Federal-aid highway program are contained in title 23, United States Code. We find nothing in title 23 which specifically requires the Executive Branch to obligate in fiscal year 1967 all the Federal-aid highway funds available for obligation during that fiscal year, if it is determined not to be in the best interest of the United States to do so, nor are we aware of such a requirement in any other law.
While among the specific powers and duties of the President set forth in Article II of the Constitution is the duty to “take Care that the Laws be faithfully executed," we have found nothing conclusive on the question as to whether this constitutional provision may be considered as sustaining the President's authority to withhold the obligation of appropriations or as precluding the President from asserting such authority under circumstances such as involved here. The Congress has had occasion to consider the question of the authority of the President to withhold or impound appropriated funds. See 108 Cong. Rec. 4645-46, 4689-724, 6303-19, 6836-49, 10342-81, 14832-33, 15244-45. Also, your attention is invited to the following Law Review articles :
"The Power of the President to Impound Appropriated Funds: With Special Reference to Grants-In-Aid to Segregated Activities", R. E. Goosetree, American University Law Review, Vol. 11, page 32, January 1962.
"Congressional Power to Require Defense Expenditures”, G. W. Davis, Fordham Law Review, Vol. 33, page 39, October 1964.
"A 20th Century Emancipation Proclamation: Presidential Power Permits Withholding of Federal Funds from Segregated Institutions, Harry Kranz, American University Law Review, Vol. 11, page 48.”
In connection with the withholding or impounding of appropriations, we note that a number of bills (H.R. 11441, H.R. 11541, H.R. 11682, and S. 3578, 85th Congress; and H.R. 1254 of the 86th Congress) have been introduced in the Congress which would have made it “unlawful for any officer, agent, or employee of the United States ,or any department, bureau, or agency thereof to withhold or impound or otherwise prevent any moneys appropriated by the ('ongress from being promptly used or applied by contract or otherwise for the purpose designated in the Act appropriating the same." These bills failed of enactment. We trust that this letter will be of some assistance to your committee.
The same letter is being sent to the Chairman, Committee on Public Works, House of Representatives. Sincerely yours,
(Signed) ELMER B. STAATS,
Comptroller General of the United States. Mr. TURNER. In 1968, Congress enacted 23 U.S.C. 101(c), which states that it is the "sense of Congress” that no apportioned highway funds be impounded or withheld except such sums as necessary to assure sufficient amounts in the highway trust fund to defray expenditures. The House Public Works Committee reported a bill which contained mandatory language prohibiting such impoundment or withholding (H.R. 17134; see H.R. 1584, 90th Cong., 2d sess., p. 11); however, the mandatory language was eliminated in conference (H.R. 1799, 90th Cong., 2d sess., p. 31.) In 1970, Congress reenacted 23 U.S.C. 101(c) almost verbatim, with very little additional comment (refer House of Representatives 91-1554, 91st Cong., 2d sess., p. 13; H.R. 91–1780, 91st Cong., 2d sess., p. 41).
Two major legal opinions have been rendered on the legality of the limitations in the Federal-aid highway program which we will supply for the record.
The first was by the Comptroller General.
Senator Randolph and former Representative Fallon, the chairmen, respectively, of the Senate and House Public Works Committees, asked the Comptroller General for his opinion of the legality of the 1967 limitation.
The Comptroller General replied on February 24, 1967, in opinion B--160891. He emphasized that the opinion was advisory only and was binding on no one. The Comptroller General advised that he found the limitation to be legal as a proper exercise of executive authority so long as the executive did not reduce already out
standing Federal obligations, which no limitation has so far done, it had no duty to spend all that Congress appropriates or authorizes to be obligated.
The other opinion on this matter was issued by the Attorney General on February 25, 1967, in answer to the Secretary of Transportation's request for a clarification of the legal issues involved.
The Attorney General upheld the legality of the limitation as applied to the Federal-aid highway program, at least insofar as the limitation did not affect Federal obligations already outstanding.
I would like to point out that a case has been filed in the U.S. District Court for the western district of Missouri on August 14, 1970, by the State Highway Commission of Missouri v. Secretary Volpe and George Shultz, Director of the Office of Management and Budget—Civil No. 1616.
This action is brought by the State highway commission of Missouri and the complaint alleges, among other things, that the action of the Secretary in withholding the right to obligate funds is without authority in law.
I will not discuss this case further inasmuch as I have been advised by counsel here and the Department of Justice that such discussion would be inappropriate during pendency of this litigation.
Before concluding my prepared statement, I would like to emphasize that no limitation has lasted long enough to affect any lapsing of funds as provided for in 23 U.S.C. 118.
I will be happy to answer any questions you may have.
Senator Ervin. Suppose we just start our questions around on the Senate side.
Mr. EDMISTEN. Prof. Loch K. Johnson of the University of North Carolina.
Professor Johnson. One thing I am interested in is this opinion B-160891, on page 6, that you mentioned.
Did the Comptroller General say that the limitation was legal regardless of whether or not mandatory language was used ?
Mr. WELLS. Are you talking about the Attorney General's opinion or the Comptroller General's opinion, on page 6 ?
Professor JOHNSON. Opinion B-160891, the Comptroller General's opinion. Would you look at the top of page 7?
It says that the Executive had no duty to spend all that Congress appropriates or authorizes to be obligated.
Is that despite whether or not the language is mandatory? The top sentence on page 7?
Mr. TURNER. Within the context of the question that was asked of the Comptroller General, I believe that he answered only with respect to a situation in which there is no mandatory expenditure language, because our situation is an authorizing amount and it does not contain any mandatory language. So I would answer your question that that would be the context in which the answer was given to us and I do not know whether it would cover a mandatory, statutorily stated situation or not.
Senator ERVIN. Professor Stolz?
Professor STOLZ. I gathered from your statement that the way you have interpreted the limitation, the Executive limitation has