Appendixes to this report contain a chronological summary of each of the cases and an alphabetical index to the cases cited. Attention is also invited to a recent publication which complements this report. It is a special report of the Joint Committee on Congressional Operations identifying court proceedings and actions of vital interest to Congress and is entitled "Court Challenges to Executive Branch Impoundments of Appropriated Funds-Cumulative to March 15, 1974.'

The special report includes the text of many of the court decisions analyzed in the instant report.

As a caveat, neither these cases, nor this report, may be taken as the final word on the issues discussed. All except a handful of the cases discussed were decided at the district court level; only a few have reached the court of appeals level. Several others are being appealed at this moment, and major conclusions distilled from a collection of district court decisions could change overnight. Most of the crucial issues will not be decided until the U.S. Supreme Court has spoken.

II. ANALYSIS OF THE CASES ON THE Merits

The discussion of the holdings in the recent cases will begin with an analysis of the constitutional argument urged by the President in support of his power to restrain the operation of congressionally enacted programs. We will see that this argument has been rejected, and that the cases have instead turned upon a construction of the extent of the mandate contained in each congressional enactment. Then, we will analyze how the courts have construed these statutes.

A. THE PRESIDENT'S ARGUMENT OF IMPLIED CONSTITUTIONAL POWER то CONTROL THE RATE OF SPENDING OF CONGRESSIONALLY APPROPRIATED FUNDS

In urging the courts to uphold his refusal to spend congressionally appropriated funds, or implement statutory programs, the President has alleged numerous theories in support of this power, including authority both express and implied in the Constitution, and various statutory grants of power.

4

Regarding express constitutional provisions, those concerning the President as Commander in Chief of the Army and Navy and as initiator of foreign policy 5 arguably empower the President to decline to spend funds to manufacture or deploy weapons systems, to wage war or to release foreign aid. For example, President Truman succeeded in rescinding billions of dollars in excess military appropriations at the end of World War II.6

The Constitution provides that, "The executive power shall be vested in a President of the United States of America 7 and that the President"... shall take care that the laws be faithfully executed. . . ." From these provisions, it has been suggested, emerges an implied power in the President, as Chief Executive Officer of the United States, to carry out his duties in the Nation's best interests. If he is to manage the budget effectively, and inferentially, the Nation's economy, the President argues that he must possess the power to impound unwanted funds.

Supporters of this argument suggest that, ". since the President lacks an item veto, he must impound the unwanted funds to preserve his budgetary objectives and maintain control over his own executive officials." Further, even though the Constitution does not expressly provide for the power of impoundment, neither does it provide for the filibuster 10 or judicial review of legislation." Just as

4 Article II, section 2.

5 See Article II, section 1. See also United States v. Curtiss Wright Export Corp., 299 U.S. 304, (1936); United States v. Pink, 315 U.S. 203, 229 (1942).

Fisher, "Funds Appropriated by the President, the Constitutional View," 38 Geo. Washington L.R. 124, 125 (1969).

7 Article II, section 1.

8 Article II, section 3.

9 Fisher, supra, at 136.

10 Id., n. 9, at 137.

11 Cohn, M., "Impoundment of Funds Appropriated by Congress," 34 Ohio St. L.J. 416, at 417 (1973).

Chief Justice Marshall established the precedent for judicial review by refusing to exercise an unconstitutional grant of jurisdiction, the President is hoping to establish the power of impoundment by refusing to expend funds unwisely (in his opinion) appropriated by Congress.12 Detractors of this view urge that impoundment represents an unconstitutional veto power in excess of the limited veto which Congress is empowered to override. Moreover, because the Constitution provides that "All legislative powers herein granted shall be vested in a Congress of the United States " 13 and that "The Congress shall have power . . . to pay the debts and provide for the common defense and general welfare of the United States the President is merely interjecting his own will and his own priorities into a function exclusively delegated to the Congress.15

" 14

Case law construing the inherent powers of the President is scant. In In re Neagle, 16 the Supreme Court indicated that the constitutional mandate upon the President to "take care that the laws be faithfully executed" provides the basis for certain duties of Federal officers not specified in the Constitution. A Federal marshal charged with the protection of a Supreme Court justice had, in the performance of his duties, killed a man who had attacked the justice. The Supreme Court issued a writ of habeas corpus to release the marshal, held on murder charges in a California jail, on the grounds that the President had the inherent power to appoint deputy marshals for the protection of Federal judges, and such appointment would impose upon the marshals the duty of doing whatever may be necessary for that purpose, even to the taking of human life.

The case of United States v. Midwest Oil Company," seemingly stands for the proposition that a long-standing executive practice, combined with congressional silence, gives rise to a Presidential power.18 However, this case, wherein the executive branch sought to control the rapid loss of public land to oil speculators, involved a practice of an estimated 100 years standing. It is questionable whether impoundment, a judicial controversy of relatively recent vintage and hardly characterized by congressional silence, is of sufficiently long standing to meet the Midwest Oil Company criterion.1

19

The case most damaging to the doctrine of inherent Presidential powers is the so-called Steel Seizure case, Youngstown Sheet & Tube Company v. Sawyer, 20 wherein the Supreme Court denied that President Truman had an implied constitutional power to authorize the Secretary of Commerce to operate steel plants during the Korean war to prevent a threatened steel strike damaging to national defense. This power was held, in the opinion of Justice Black, to lie in the Congress as part of its legislative role.21 Indeed, the Congress rejected an amendment to the Taft-Hartley Act which would have authorized the President to seize the mills during such an emergency.22

None of the above cases involved the appropriations process, nor did any mandate the spending of funds. Perhaps the only holding of the Supreme Court directing an executive officer to spend congressionally appropriated funds is Kendall v. United States ex rel. Stokes.23 The Court held that an act of Congress directing the Solicitor of the Treasury to adjust and settle the accounts of S. & S. Co., under contract to carry U.S. mail, did not vest in the Postmaster General discretion or control as to whether or not the whole amount of the congressionally determined settlement should be paid:

It was urged at the bar, that the postmaster-general was alone subject to the direction and control of the president, with respect to the execution of the duty imposed upon him by this law; and this right of the president is claimed, as growing out of the obligation imposed upon him by the constitution, to take care that the laws be faithfully executed. This is a doctrine that cannot receive the sanction of this court. It would be vesting in the president a dispensing power, which has no countenance for its support in any part of the constitution; and is asserting a principle, which, if carried out in its results to all cases falling within it, would be clothing the president with a power entirely to control the legislation of congress and paralyze the administration of justice.

To contend that the obligation imposed on the president to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible.24

It has been pointed out that Kendall involved a claim for services rendered, whereas in most recent holdings, the issues concern unfulfilled legislative programs rather than actions on the part of plaintiff's for which recompense is sought.25 Nevertheless, as will be seen, numerous impoundment cases do in fact concern substantial acts by State agencies in reliance upon federally enacted appropriations schemes, such as commissioning highway and water pollution control plans, and submitting complicated funding applications." In Kendall, the issue was narrowly drawn, involving legislation regarding recovery on a specific contract, rather than a broadly based statutory program. Therefore, the holding that the legislation mandating a specific disbursement requires a wholly ministerial act, thus warranting a writ of mandamus for the performance of that act, does not truly speak to the broader issue of whether the President may properly restrain the execution of whole legislative programs.

Although only tangentially at issue in the recent impoundment controversy, certain statutory enactments have permitted the President to withhold the spending of congressionally appropriated funds. For example, the Economy Acts of 1932 and 1933 enabled the President to achieve economies during the depression by reorganizing the executive branch, making layoffs, and reducing the pay of public

23 37 U.S. 524 (1838).

24 37 U.S. at 612-3.

25 Fisher, supra, at 127.

27

26 See, e.g., State Highway Commission of Missouri v. Volpe, infra; New York v. Ruckelshaus, infra.

27 Act of June 30, 1932, ch. 314, §§ 101, 105, 110, 403, 47 Stat. 399, 401, 403, 413; Act of March 3, 1933, ch. 212, §§ 403, 408, 47 Stat. 1518, 1519.

officials. The War Appropriation Act of 1933 28 authorized the President to engage in an economic survey and withhold unneeded funds. These acts, of course, are now obsolete. On the other hand, the Antideficiency Act of 1906 29 presently authorizes the Director of the Budget, at the direction of the President, to apportion appropriations in such a way as to "provide for contingencies, or to effect savings whenever savings are made possible by or through changes in requirements, greater efficiency of operations, or other developments subsequent to the date on which such appropriation was made available.” 30 [A more detailed examination of the Antideficiency Act as it applies to these cases appears later in this report.]

Generally, the courts have disagreed, without saying so directly, with the President's contention that he possesses an implied constitutional power to restrain congressionally legislated programs. Clearly, accepting the President's argument obviates the necessity to determine whether a particular act of Congress mandates the operation of a program, because the Congress cannot act to negate a constitutional power. Conversely, judicial construction of the extent of a statutory mandate effectively denies the existence of a constitutional power to refuse such a mandate. The courts have almost universally employed the latter technique in recent opinions.

In Campaign Clean Water, Inc. v. Ruckelshaus,31 the district court voided the President's announced policy of withholding part of the allotment enacted for water pollution control. The opinion stated:

The Court recognizes that this conclusion impliedly makes short shrift of the defendant's underlying contention that spending of funds legislatively appropriated is solely within the province of executive discretion. Nevertheless, to support defendant's contention would require the Court to postulate a broad reading of executive power which includes the proposition that the Congress may make funds available for spending or mandate the manner in which they are spent, but may not mandate that they, in fact, be spent. That contention has in essence been firmly rejected in a well-reasoned opinion by Judge Jones in Local 2677 v. Phillips (D.D.C. 4-11-73). As Judge Jones noted in language appropriate here, "[t]he defendant really argues that the Constitution confers the discretionary power upon the President to refuse to execute laws passed by Congress with which he disagrees."

More than a century ago the United States Supreme Court laid to rest any contention that the President has the power suggested. See Kendall v. United States, 37 U.S. 524 (1838) where the Court stated:

To contend, that the obligation imposed on the president to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible. [37 U.S. at 611].32

28 Act of March 4, 1933, ch. 281, § 4, 47 Stat. 1602.

29 Now codified at 31 U.S.C. § 665 (1970).

30 31 U.S.C. § 665 (c) (2).

31 Infra.

32 361 F. Supp. 689, 696 (E. D. Va. 1973).