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“Sparkman Assails Nixon for Refusing To Spend $8 Billion,” the
New York Times, March 4, 1971.-
March 3, 1971-------------------------------------------
Evening Star, Washington, D.C., April 7, 1971..-
Sunday Star, Washington, D.C., April 4, 1971.---
Funds? Fight' Rages in Capital,” the Wall Street Journal, April 22, 1971.-
peal, Memphis, Tenn., March 20, 1971.-New York Times, the:
"Fund Impounding by Nixon Backed," March 25, 1971..
"Separate Those Powers," editorial, April 21, 1971. News and Observer, the, Raleigh, N.C.:
"Ervin Cites Impounded U.S. Funds," March 19, 1971.------
"Ervin Challenges Nixon on Funds," March 24, 1971.
To Power Separation?” March 22, 1971.--.
Globe, Boston Mass., April 13, 1971
19, 1971. Rich, Spencer:
"Threatened Veto of HEW Bill is Keyed to Hill Control” the Wash
ington Post, January 8, 1970---
ington Post, April 5, 1971.--.
By Congress,” April 19, 1971.-
News, April 2, 1971..
the Evening Star, Washington, D.C., April 6, 1971.-
trol of Expenditures: Annotated Bibliography of Selected References,"
February 13, 1968-----
of Appropriated Funds: A List of References," March 23, 1971.----
EXECUTIVE IMPOUNDMENT OF APPROPRIATED FUNDS
TUESDAY, MARCH 23, 1971
Washington, D.C. The subcommittee met, pursuant to notice, at 10 a.m., in room 2228, New Senate Office Building, Senator Sam J. Ervin, Jr., chairman, presiding.
Present: Senators Ervin and Mathias.
Also present: Rufus L. Edmisten, chief counsel and staff director; Joel M. Abramson, minority counsel; Prof. Arthur S. Miller, the George Washington University, The National Law Center, consultant; Prof. Ralph K. Winter, Jr., Yale University Law School, consultant; Prof. Alexander M. Bickel, Yale University Law School and the Center for Advanced Study in the Behavioral Sciences, Stanford, Calif., consultant; Prof. Preble Stolz, University of California School of Law, Berkeley, and visiting professor of law, Yale University; and Prof. Loch K. Johnson, Ūniversity of North Carolina at Chapel Hill.
Senator ERVIN. The subcommittee will come to order.
The Subcommittee on Separation of Powers today begins hearings on a subject that goes directly to the heart of the separation of powers doctrine: the impoundment by the executive branch of funds duly appropriated by the Congress.
The growing practice of executive impoundment is yet another in a long line of developments in the operation of our national Government which erode the powers of the legislative branch and contribute to the steady deterioration of the constitutional principles upon which this Nation rests.
Impounding—or reserving, freezing, withholding, sequestering, depending on semantic choice is not a new concept, and when undertaken for proper purposes, it may be quite useful in effecting economy. Various procedures have been used over the years, the most common being the reserving of funds to prevent deficiencies in a Federal program, or to effect savings.
Impoundment also sometimes occurs when Congress, for some special reason such as war or economic unrest, passes appropriations as nothing more than ceilings on expenditures, leaving it within the discretion of the executive branch to expend the funds. Moreover, impoundment may occur as the result of a specific congressional mandate. Under any of these forms of impoundment, the executive branch is permitted-or required—to withhold funds under certain specified conditions.
However, impoundment unfortunately occurs under circumstances when the executive branch, for reasons of its own, wishes to avoid expending sums which the Congress has explicitly directed to be spent for some particular purpose. It is this situation which poses a threat to our system of government and which so patently violates the separation of powers principle.
Let it be established at the outset that neither I nor my colleagues in the Congress who are concerned over this problem wish the executive branch to expend the taxpayers' money foolishly. On the contrary, it is well known that I advocate a balanced national budget and ever greater economy in the Government. Nor is this a partisan problem. Impoundment has occurred under Democratic and Republican administrations and is as objectionable under one as under the other.
In fact, the anti-deficiency acts of 1905 and 1906 provide that appropriated moneys may "be so apportioned by monthly, or other allotments as to prevent expenditures in one portion of the year which may necessitate deficiency or additional appropriations to complete the service of the fiscal year for which said appropriations are made." (Act of Feb. 27, 1906, ch. 510, sec. 3, 34 Stat. 48-49.)
These acts were passed as an aid to economy, but the impoundment process has, over the years, evolved into a major policy tool. By employing impoundment for policy reasons, the executive branch has, on many occasions, nullified policies of Congress which had been enacted into appropriations statutes.
Under the Constitution, all legislative power is vested in the Congress, including the power to appropriate money. Article I, section 9, provides that "no money shall be drawn from the Treasury but in consequence of appropriations made by law.” As one scholar, Leonard D. White, in his book, "The Federalists," said the Founding Fathers took the utmost care
To insure that public funds would be legally expended, to prevent either misapplication or embezzlement, and to guarantee that the immediate representatives of the people would bear the responsibility for determining how much money should be provided, the sources from which it should be derived, and the purposes to which it should be applied.
The President, on the other hand, is given no role in legislation save for the power to recommend "such measures as he shall judge necessary and expedient” provided in article II, section 3, of the Constitution, and the power granted him under article I, section 7, to veto measures passed by the Congress, subject to being overridden by a two-thirds vote of both Houses. He does have the clear responsibility to "take care that the laws be faithfully executed," as required by article II, section 3. Certainly the Founding Fathers did not intend to give the President any discretion when they imposed that duty upon him.
On the contrary, they intended that he execute all laws passed by the Congress, irrespective of any personal, political, or philosophical views he might have. He has no authority under the Constitution to decide which laws will be executed or to what extent they will be enforced. Yet, by using the impounding technique, the
including restitution, propriations cd policies on
President is able to do just that. He is able to effect policy by determining which of the laws passed by Congress he will enforce and to what extent.
It is equally evident that the Founding Fathers intended to limit the veto power of the President to the procedure outlined in article I, section 7, which gives him only a limited veto, subject to being overridden by the Congress. Yet under the impoundment procedure the President is, in effect, able to veto measures absolutely, after they have been passed by the Congress and signed by him.
Perhaps even more shocking is the fact that impoundment enables the President to effect an item or line veto. Such a power clearly is prohibited by the Constitution which only empowers him to veto entire bills. Thus, by impounding appropriated funds, the President is able to modify, reshape, or nullify completely laws passed by the legislative branch, thereby making legislative policy through Executive power. Such an illegal exercise of the power of his office flies directly in the face of clear constitutional provisions to the contrary.
In this era, the powers of the executive branch have become dominant in the operation of the governmental structure. The power of the purse is one of the few remaining tools which Congress can use to oversee and control the burgeoning Federal bureaucracy. Congress is constitutionally obligated to make legislative policy and is accountable to the citizens for carrying out that obligation. The impoundment practice seriously interferes with the successful operation of that principle and places Congress in the paradoxical and helittling role of having to lobby the executive branch to carry out the laws it passes.
The impoundment practice has existed throughout this century, although it did not reach its height until the depression and the war years, when it became a means of coping with economic pressures and the necessity of centralizing the management of the Nation's war effort. While many observers feel that impoundment during the war years appeared at the time to be necessary to give effect to the President's war powers, the practice unfortunately did not abate following the war but has expanded steadily since that time, spreading from military spending to the civilian sphere.
The increase in impoundment has attracted the attention of the Congress from time to time and individual Members have decried its use. However, the practice has never been studied in depth by a congressional committee and one administration after another has engaged in impounding with the apparent acquiescence of the Congress.
This subcommittee in 1969 attempted to gather information from the executive branch of the Government regarding the extent of impoundment, the amount of money being impounded and for what projects, and the constitutional grounds upon which the practice was based.
The subcommittee wrote every department, agency, commission, and board in the Government requesting that they submit a complete listing of impounded funds appropriated for their use for the fiscal years 1945-69.