Bureau of the Budget Examiner's Handbook (1952 ed.).... Bureau of the Budget, Memorandum to the Comptroller General's Opinion of the Legality of Executive Impoundment of Appropriated Funds, Prepared for the Subcomm. on Separation of Powers of the Senate Judiciary Committee, 93 Cong., 2d Sess. (Comm. Print 1974)... 39 Fed. Reg. 36214 et seq. (1974). 39 Fed. Reg. 36263 (1974) LEGISLATIVE MATERIALS: 13 13 13,14 5 5 S. Rep. No. 30, 94th Cong., 1st Sess. (1974).... 6 Hearings on the Executive Impoundment of 13,47 This action was brought by the Comptroller General of the United States on April 15, 1975 pursuant to his express authority under Section 1016 of the Impoundment Control Act of 1974 ("Act"), Title X, Pub. L. 93-344, 31 U.S.C. S 1406. Section 1016 states, in relevant part: "If, under section 1012 (b) or 1013 (b) appropriate to make such budget authority In this action, plaintiff seeks a judgment declaring that defendants have unlawfully failed to make budget authority available for obligation and injunctive relief directing them to make that budget authority available. : On June 16, 1975 defendants moved to dismiss, contending that Section 1016 is unconstitutional. They assert that it is unconstitutional for the Comptroller General to bring a suit that Congress "expressly empowered" him to bring and unconstitutional for this Court to entertain a suit that Congress "expressly empowered" it to decide. STATEMENT OF THE CASE A. The Impoundment Control Act of 1974 The Impoundment Control Act of 1974 establishes certain specific procedures to be followed in order for budget 1/ i.e., - rescis authority enacted by Congress to be "impounded" withheld from availability for obligation or expenditure. Under the Act there are two kinds of impoundments sions and deferrals: "A rescission is a congressional action that cancels budget authority previously granted that is still unused and available for obligation." By contrast "[a] deferral is an executive branch action or inaction that 1/ "Budget authority usually takes the form of appropriations, which permit obligations to be incurred and payments to be made. Some budget authority is in the form of contract authority, which permits obligations in advance of appropriations but requires a subsequent appropriation or receipts to 'liquidate' (pay) these obligations." The Budget of the United States Government, Fiscal Year 1976, at 169 Thereinafter "1976 Budget"). The budget authority involved in this case is contract authority. However, in this Opposition we shall use the terms "budget authority" and "appropriations" synonymously. effectively delays the obligation of or expenditure of budget authority." 1976 Budget 170; see Act SS 1011-12, 31 U.S.c. ss 1401-02. Rescissions and deferrals are governed by different procedures under the Act. Whenever the President determines that budget authority provided by Congress for a particular program will not be required to carry out the full objectives or scope of the program, or that such budget authority should be rescinded for fiscal policy or other reasons, he must transmit a special message to Congress requesting a rescission of the budget authority. Act S 1012(a), 31 U.S.C. S 1402(a). Unless both the House and the Senate pass a bill rescinding the budget authority within 45 days of continuous session after receiving the President's message, the funds proposed for rescission must be made available for obligation. Act § 1012(b), 31 U.S.c. S 1402(b). Whenever the President proposes to defer (i.e., temporarily withhold) budget authority provided by Congress, he must transmit a special deferral message to Congress. Act § 1013(a), 31 U.S.C. S 1403(a). If either house of Congress passes a simple resolution disapproving this deferral of budget authority, the funds must be made available for obligation. Act S 1013(b), 31 U.S.C S 1403(b). If neither house disapproves the deferral, the deferral may remain in effect until the end of the fiscal year. Act S 1013(a), 31 U.S.C. S 1403(a). |