cannot mean the end of the highway program. Highway transportation will continue to dominate in passenger movements for the forseeable future and to contribute substantially to the movement of goods. There are no proven revolutionary changes developing in other transportation modes which will provide acceptable substitutes for the motor vehicle. Highway transportation requirements have kept pace with or exceeded growth of the Gross National Product. It is to be expected that this relationship will continue in the future if we are to have a viable economy and that highway programs will of necessity continue to increase in magnitude.

February 26, 1973. DEPARTMENT OF JUSTICE ANSWERS TO QUESTIONS CONCERNING IMPOUNDING OF APPROPRIATED FUNDS POSED BY SENATOR ERVIN IN HIS LETTER OF FEBRUARY 14, 1973, TO THE DEPUTY ATTORNEY GENERAL

1. Question: You asserted in your written statement that "The President has substantial authority to "control" spending in the areas of national defense and foreign relations," citing "the President's constitutional role as Commander-inChief of the Armed Forces and... his relatively broad constitutional authority in the field of foreign affairs." (Emphasis added.) Do you have Supreme Court cases expressly stating that the President has such "authority?" If so, cite them. If not, please outline the legal justifications for that position.

Answer: Initially, I should make it clear that the word "control" in my statement refers only to the President's power to limit spending by impounding appropriated funds. There was no intent to question the exclusive power of Congress under Article I, section 9, to establish spending ceilings through appropriations. It is noteworthy that that provision merely provides the authority of the Executive to spend: "No money shall be drawn from the Treasury, but in Consequences of Appropriations made by Law." It does not direct the Executive to spend the appropriation, nor is there any other provision in the Constitution to that effect. Since the issue is basically a political, nonjusticiable one, as shown in the answer to question 5, there are no decisions of the Supreme Court which deal directly with Presidential impounding powers in the national defense and foreign affairs areas. Nor will the Court, in my view, undertake that task, any more than it has done so in the Vietnam situation. See, e.g., Massachusetts v. Laird, 400 U.S. 886 (1970). Nevertheless, the President's authority in these areas is derived directly from provisions of the Constitution (Article II, section 2) which grant the President special powers and responsibilities with respect to the defense and foreign affairs of our Nation. The breadth of the President's powers in these areas has been recognized in those few relevant cases presenting justiciable questions. In ruling against the government in the Pentagon Papers case, Justice Stewart, with the concurrence of Justice White, said:

"In the governmental structure created by our Constitution, the Executive is endowed with enormous power in the two related areas of national defense and international relations. This power, largely unchecked by the Legislative and Judicial branches, has been pressed to the very hilt since the advent of the nuclear missile age. For better or for worse, the simple fact is that a President of the United States possesses vastly greater constitutional independence in these two vital areas of power than does, say, a prime minister of a country with a parliamentary form of government.” New York Times Co. v. United States, 403 U.S. 713, 727-728 (1971) (footnotes omitted). That case presented a First Amendment question which-unlike impounding disputes-is an area where the Court has traditionally adhered to broad standards of justiciability. Even in the free speech area, however, when the President's defense and foreign relations powers are also implicated, the scope of judicial review is "very narrowly restricted." New York Times Co. v. United States, supra at 756, dissenting opinion of Justice Harlan, concurred in by Chief Justice Burger and Justice Blackmun. See also concurring opinions of Justices Stewart and White, 403 U.S. at 727, 730. Even Congressional critics of impounding appear to concede the existence of Presidential impounding authority in the defense and foreign affairs areas. See statement of Senator Kennedy of February 6, 1973, before your Subcommittee.

It is also true that Article I, section 8 of the Constitution grants considerable power with respect to the armed forces to the Congress. Clearly, then, the Constitution envisages a divided responsibility between the President and Congress concerning defense matters, and, as indicated below, in the area of foreign relations.

None of the cited constitutional provisions deals directly with the question of impounding. However, President Jefferson's action in 1803 with respect to the gunboat appropriation demonstrated at an early date that the President does possess substantial authority in this area. Other documented examples of impounding of defense appropriations include President Franklin Roosevelt's decision to provide for an Army of 147,000 men in 1935-1936, although Congress had appropriated for 165,000 men (Statement of Professor Cooper, in Hearings on Executive Impoundment of Appropriated Funds before the Subcommittee on Separation of Powers of the Senate Committee on the Judiciary, at 182, 92d Cong., 1st Sess. (1971)) (hereinafter cited as Hearings); President Truman's

action in impounding over $700 million in funds intended to enlarge the Air Force from 48 to 58 groups (Fisher, The Politics of Impounded Funds, 15 Ad. Sci. Q. 361, at 366-67); President Eisenhower's impounding of funds for the antiballistic missile system (Id. at 368–69); and President Kennedy's impounding of funds for the B-70 bomber (Id. at 369). A list of thirteen impoundings of defense funds between 1956 and 1961 is set forth in the Hearings, at 526.

I submit that whatever doubt may have existed because the Constitution does not deal directly with impounding in the defense area has now been resolved in the President's favor by this long-standing Executive practice. However, there are no precedents concerning the question whether the President may impound defense funds in the face of mandatory language to spend. In testimony before your Subcommittee in 1971, former Deputy Director of the Office of Management and Budget Weinberger and former Assistant Attorney General Rehnquist both took the position that the Commander-in-Chief power would provide the basis for such Presidential impounding even in the face of statutory language requiring expediture. Hearings, at 95, 144-45, 235, 243–247.

During a controvery over spending language proposed in connection with the B-70 bomber, President Kennedy wrote to the House Armed Services Committee requesting the deletion of mandatory language. The letter stated in part:

(I)mplicit in the Constitution, of course, is the intent that a spirit of comity govern relations between the executive and legislative. And while this makes unwise if not impossible any legislative effort to 'direct' the Executive on matters within the latter's jurisdiction, it also makes it incumbent upon the Executive to give every possible consideration in such matters to the views of Congress. (emphasis supplied) 108 Cong. Rec. 4694 (1962).

I subscribe to the position outlined by President Kennedy, both to the extent that it suggests the impossibility of forcing the President to spend in the defense area, and certainly insofar as it demonstrates that decisions involving weapon systems for our armed forces fall within the ambit of the President's Commanderin-Chief powers.

In addition to the advice and consent powers of the Senate in foreign affairs matters (Article II, § 2), the Congress has certain foreign affairs powers spelled out in Article I, section 8 of the Constitution. Congress is granted the authority to levy duties, to regulate commerce with foreign nations, to define and punish piracy and felonies committed on the high seas and violations of the "Law of Nations", and to declare war. As in the defense area, the Constitution envisions divided responsibility between the Congress and the President in matters of foreign affairs. As a matter of practice, the President's powers in this area have been substantial, particularly in negotiating treaties and other international agreements. See generally, Corwin, The President: Office and Powers, 17871957, 170 et seq. (1957). In this respect at least, the Supreme Court has recognized this broad range of Executive authority. In United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), the Court sustained the power of the President to prohibit arms sales to countries engaged in armed conflict. The President had acted pursuant to a joint resolution of Congress. However, the Court at pages 319-320 of its opinion stressed the unique and partially exclusive role of the President in conducting foreign affairs.

Curtis-Wright has been cited in support of the view that the President would not be bound by a congressional mandate prohibiting impounding of funds in the foreign affairs area. See the statements of former Assistant Attorney General Rehnquist before your Subcommittee in 1971, Hearings, at 235, 248-49. I concur in that view.

2. Question: With respect to the foregoing, is it the position of the Department of Justice that the President's “substantial authority" in the designated areas supersedes the power of Congress under Article I of the Constitution?

Answer: The impounding authority of the President does not "supersede" any power of the Congress under Article I of the Constitution. As indicated in the answer to Question 1, the Constitution envisions a system of divided responsibility between the Congress and the President in both the defense and foreign affairs areas. Because no express constitutional provision deals with the question of impounding, the somewhat ambiguous spheres of authority between the legislative and executive branches must be derived from the practice of past Presidents in dealing with the Congress, and the practical necessities of providing for the nation's defense and carrying out its foreign policy.

3. Question: Does not the “necessary and proper" clause of Article I, section 8 of the Constitution give Congress power to make laws governing the other de

partments, including the Executive? If so, can there be any doubt that a clearly mandated appropriation bill would be binding on the Executive, whether in domestic or foreign affairs?

Answer: In Kansas v. Colorado, 206 U.S. 46, 88 (1907), the Supreme Court rejected the notion that the necessary and proper clause is a "delegation of a new and independent Power." Instead, the Court held that the clause simply authorizes the Congress to implement the powers granted to it by the Constitution. As such, and standing alone, it does not grant to the Congress the "power to make laws governing the other departments."

4. Question: You stated in your testimony that S. 373 would “reverse 170 years of Presidential practice." Please set forth in outline form the number of impoundments by each Chief Executive during that 170 year period and the amount of dollars in each fiscal year so impounded. To facilitate your answer, you may wish to cite relevant literature that compiles those data.

Answer: As indicated in my testimony, under the sweeping definition of impounding included in section 3 of S. 373, a great many impounding actions occur each year. A determination of the number of such actions and the amounts of funds impounded for each of the last 170 years is impossible. Nevertheless, insofar as your question requests documentation for my statement that S. 373 "seeks to reverse 170 years of Presidential practice," I believe that I can be responsive.

The figure of "170 years" assumes that the initial impounding action was taken by President Jefferson in 1803, as described in my prepared statement. If an impounding action is understood as any decision to withhold or delay the expenditure of funds, Jefferson's action in connection with the gunboats was not the first impounding action by the Executive branch. Budgetary decisions involving the rate of spending are an inherent part of administering appropriated funds. This type of impounding authority certainly has been exercised by all Presidents beginning with George Washington. Indeed, the need for Executive spending discretion was in some respects greater during earlier periods, because appropriation acts contained only the most general guidelines as to how funds were to be spent. See Corwin, The President, 127–128; testimony of former Assistant Attorney General Rehnquist, in Hearings, at 233.

For our purposes, one of the most significant nineteenth century impoundings occurred during the administration of President Grant in 1876. In signing into law a bill appropriating funds for harbor and river improvements (19 Stat. 132), President Grant sent a special message to the House of Representatives announcing his intention not to spend the full amounts appropriated under the act. He expressed opposition to certain appropriations for "works of purely private or local interest, in no sense national." Moreover, the statement indicated that the withholding of expenditures was necessary in order to maintain the nation's fiscal integrity:

There is very great necessity for economy of expenditures at this time, growing out of the loss of revenue likely to arise from a deficiency of appropriations to insure thorough collection of same . . . It may be a question to consider whether any expenditure can be authorized under the river and harbor appropriation further than to protect works already done and paid for. 7 Richardson Messages and Papers of the Presidents 377 (1898). Acting pursuant to the President's instructions, the Secretary of War and the Chief of the Army Corps of Engineers took action resulting in an allotment of only $2,332,850 of the $5,015,000 which had been appropriated by the Congress. Ex. Doc. No. 23, 44th Cong., 2d sess. 56 (1876). The House of Representatives reacted by passing a resolution requesting that the President indicate the legal basis for his action. In responding to this request, Secretary of War Cameron wrote:

I would suggest that the law and authority are found in the act itself, which appropriates certain sums to be expended for certain purposes, under the direction of the Secretary of War, but is in no way mandatory upon him to expend the full amount; and a moment's reflection will show that it is not feasible to so limit his discretion, since change of plan, decrease of cost of material and labor, or any one of many other contingencies might leave a portion of the appropriation unexpended . . . The executive officer who is charged with these expenditures is bound by his regard for the interests of the public service, but his discretion is not limited by any express provision of law.