control. electrification, sewage treatment, housing and water pollution 8/ With few exceptions, the challenges were successful and the impoundments were held to be unlawful. The courts repeatedly held that the impoundments at issue were neither authorized by the Antideficiency Act nor permitted by the Constitution. Nevertheless, despite a reasonably clear understanding of the limits of executive authority, impoundments proliferated; the power to impound budget authority was easy to exercise, and judicial challenges to that power were time-consuming and difficult to resolve. The impasse became so serious that Senator Ervin stated, in 1974, that "[t]here is hardly a constitutional issue confronting our country today that is more important than that of impoundment 9/ of funds.' It was in this context that Congress turned to the fundamental question whether the Executive was to be allowed to determine which spending laws it might choose to ignore. After considering numerous bills designed to deal with the impoundment problem, Congress embodied its solution in H.R. the Congressional Budget and Impoundment Control Act which President Nixon signed on July 12, 1974. - 7130 - 8/ See, e.g., Train v. City of New York, 420 U.S. 35 (1975); State Highway Commission of Missouri v. Volpe, 479 F.2d 1099 (8th Cir. 1973); Berends v. Butz, 357 F. Supp. 143 (D. Minn. 1973); Minnesota Chippewa Tribe v. Carlucci, Civ. Action No. 175-73 (D.D.C. May 8, 1973); National Council of Community Mental Health Centers, Inc. v. Weinberger, 361 F. Supp. 897 (D.D.C. 1973). 9/ Forward to 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 Comm., 93d Cong., 2d Sess. iii (Comm. Print 1974). The Impoundment Control Act of 1974 was designed to ensure Executive responsibility toward laws relating to Government expenditures. Basic to the design of the Act was the requirement for a practical means to hold the Executive accountable. This requirement was met by vesting authority to bring suit to require release of budget authority in the Comptroller General of the United States, an independent officer. Thus matters that previously were cognizable and subject to determination by the Judicial Branch only at enormous expense in both time and money to the citizenry affected could now be expeditiously and efficiently brought before the Judiciary for resolution by the Comptroller General. In short, the issue of illegal Executive impoundments addressed by the Impoundment Control Act of 1974 is not a matter of isolated, intermittent instances of controversy between the Executive and Legislative Branches, susceptible to case-by-case resolution through political processes. It is a matter with a history, one that Congress has addressed before and has had to address again in 1974. In this context it is clear that the underlying issue on this motion is whether the Executive whose function it is to carry out the laws is itself above the law. B. Due Respect For The Political Branches Of Government The Impoundment Control Act of 1974 was carefully worked out by the political process. It was enacted by Congress and signed by President Nixon. It establishes procedures for resolving a long-standing dispute between the Executive and Legislative Branches, going to the heart of the · 15 Government's ability to establish, fund and implement important federal programs. The Act is designed to end a major constitutional confrontation that smoldered for more than 30 years and finally erupted during the Nixon administration. The Act carefully accommodates the positions of both the President and the Congress with regard to impoundment actions. It sets forth a procedure for notification to the Congress of proposed impoundments and subsequent procedures providing for full and mature consideration of the proposed impoundments by both Branches. Only in the rare case when a dispute over the legality of an impoundment continues even after such consideration has been completed does the Act provide for resolution of that dispute by litigation. Act assigns the responsibility for initiating and maintaining such suits to the Comptroller General - And the the independent officer, who, as agreed upon by both Congress and the President, has the primary responsibility not only for administering the Impoundment Control Act, but for policing the entire process of expending appropriations. Respect for those If this Court were to sustain defendants' motion to dismiss, it would upset the mechanism so carefully worked out by the coordinate Branches of Government. Branches, and for the political process through which they so, assiduously labored to produce the Impoundment Control Act, militates strongly against dismissing this action. Moreover, as we shall now show, defendants' arguments in support of their motion are clearly insupportable. II. SECTION 1016 IS PRESUMPTIVELY CONSTITUTIONAL Section 1016 of the Act expressly authorizes the Comptroller General to bring this suit. Pursuant to its constitutional power to define the jurisdiction of the lower federal courts, Congress in Section 1016 expressly authorized this District Court to entertain and decide this case. Defendants contend that Section 1016 is unconstitutional. succeed in their direct attack on an Act of Congress, defendants must meet an extremely heavy burden. То Out of respect for the wisdom and integrity of its coordinate Branch of Government, the Federal Judiciary has always accorded a strong presumption of constitutionality to every statute passed by Congress. Thus, in the Sinking-Fund Cases, 99 U.S. 700 (1878), the Supreme Court was called upon to judge the constitutionality of an Act of Congress, and declared: in "It is our duty, when required in In Nicol v. Ames, 173 U.S. 509 (1899), the Supreme Court reiterated this presumption in passing upon the constitutionality of a revenue act passed by Congress: See also United States v. National Dairy Products Corp., 372 U.S. 29, 32 (1963); Flemming v. Nestor, 363 U.S. 603, 617 (1960); Buttfield v. Stranahan, 192 U.S. 470, 492 (1904) ; United States v. Gettysburg Electric Railway Company, 160 U.S. 668, 680 (1896). As we show below, defendants have failed by a wide margin to overcome this presumption. III. A. SECTION 1016 OF THE IMPOUNDNENT CONTROL ACT The Comptroller General Is Not Abridging The It must be noted at the outset that the power to sue to obtain compliance with the law is not, as defendants allege (Def. Mem. 8-10), an "executive" function which only the President can possess. Their argument depends on the assumption that the bringing of any lawsuit amounts to "executing the laws," and that such an action may be taken only by the Executive Branch. |