Other courts make even shorter shrift of the President's constitutional argument, not even mentioning it while construing the relevant statute. Indeed, the President may even have given up on the contention of implied constitutional power. The Government's brief on the appeal of New York v. Ruckelshaus 33 before the United States Court of Appeals for the District of Columbia 34 made not the merest mention of the argument. That the courts have not faced the constitutional issue head-on is not surprising. The issue has not been raised in such a way as to compel the court to decide it, although in one case it was considered that an abuse of statutory discretion in such a way as to frustrate the congressional purpose presents an issue of "constitutional dimensions." 35 Courts will always refrain from deciding a case on constitutional grounds when there are other adequate grounds for the decision,36 and in each of the impoundment cases, adequate statutory grounds have existed upon which to base a decision. This is not to say that the constitutional argument has not been raised in the cases; it has been raised and discussed often. However, it has not been raised as a legal defense by administration officials, in justifying their retardation of Federal programs. Statutory language has historically been drawn under the assumption that programs would be executed. If anything, language has been more carefully crafted by the Congress for the purpose of preventing execution of Federal programs in excess of congressionally enacted limitations. Only recently has a massive resistance to execution of programs become an issue in the courts, and existing precedents have broadly construed executive discretion. On the other hand, the theory of implied constitutional powers, in this context, has achieved negligible support in the Supreme Court. Therefore, administrative officers, sued to mandate the execution of Federal programs, have apparently adopted the strategy of arguing that they possess broad statutory discretion, rather than trusting their fate in consequence of their actions to a constitutional theory of doubtful validity. B. THE COURT'S CONSTRUCTION OF STATUTORY MANDATE IN EACH CASE The holdings on the merits of these cases may best be analyzed in terms of the nature of the actions taken by various executive branch officials to impede congressionally enacted programs. These fall into four general categories. 1. Allotment of Funds Among the States Pursuant to a Two-Stage Appropriations Process.-Several Federal programs heavily litigated prescribed a two-stage process for expending congressionally appropriated funds. Under the Federal Aid Highway Act of 1956, as amended,37 the Federal Water Pollution Control Act Amendments of 1972,38 the Rural Environmental Assistance Program (REAP),39 and parts A and C of title V of the Elementary and Secondary Education Act of 1965,40 money is first allotted among the States according to a formula set forth in the statute, on which the States base their program plans, and then the money is obligated upon final approval of these plans by the Secretary of Transportation and the Administrator of the Environmental Protection Agency, officials of the Department of Agriculture, and the Commissioner of Education, respectively. A closer look at the Water Pollution Control Act will clarify the allotment stage of the spending process. Section 207 of the act authorizes the appropriation of sums "not to exceed" $5 billion in fiscal year 1973, $6 billion in fiscal year 1974, and $7 billion in fiscal year 1975, to be made available to the States for obligation for sewage treatment works construction approved by the Administrator of the Environmental Protection Agency. The pro rata formula by which the Administrator is to allocate the funds among the States is prescribed in section 205. Based upon the allocations, each State submits grant applications plans, specifications, and estimates for projectsand only final approval of these applications by the Administrator gives rise to a contractual obligation on the part of the United States to expend the Federal share of the construction costs, as bills come due. Thus, it is clear that allotment is not tantamount to either commitment or expenditure of funds. Allocation provisions of the act have been held, by the U.S. Court of Appeals for the District of Columbia, to mandate the allocation. among the States of the full amount of the authorization. The opinion of Judge Oliver Gasch, in the district court, which was affirmed by the circuit court of appeals, reasoned that the language of the act providing that "[s]ums authorized to be appropriated shall be allotted by the Administrator not later than the January 1st immediately preceding the beginning of the fiscal year for which authorized.. mandated the allotment because of the use of "shall" instead of "may." The Administrator had argued that the words "not to exceed" permitted him to decrease, upon the instructions by the President, the amount of the allotment by $6 billion for 1973 and 1974.42 Judge Gasch ruled, however, that whatever discretion the Administrator had to refuse to spend water pollution control funds came at the obligation stage, rather than the allotment stage, of the appropriations process. Although the legislative history of the act reveals that the words "not to exceed" were added by amendment, and another amendment deleted the word "all" from the phrase "[s]ums authorized to be appropriated . . ." the court instead relied upon colloquy on the floor of the House between the manager of the amendments, Rep. William Harsha (R-Ohio) and others, as demonstrating that the express purpose of the amendments was to grant the Administrator discretion only in obligating and expending funds. The holding in this case was echoed in Minnesota v. Fri and Martin-Trigona v. Ruckelshaus.44 43 Judge Robert R. Merhige, in Campaign Clean Water, Inc. v. Ruckelshaus, 45 regarding the same act, could not agree with Judge Gasch's interpretation, but Judge Merhige's decision has been remanded by 41 City of New York v. Train, No. 73-1705 (D.C. Cir., Jan. 23, 1974); affirming City of New York v. Ruckelshaus, 41 U.S.L.W. 2602 (D.D.C., May 8, 1973). 42 37 Fed. Reg. 26282, § 35, 910-1(2) (1972). 43 No. 4-73 Civ. 133 (D. Minn., June 26, 1973). 44 No. 72C 3044 (N.D. Ill.. June 29. 1973). 45 361 F. Supp. 689 (E.D. Va. 1973). the Court of Appeals for the Fourth Circuit.46 He found Judge Gasch, the plaintiff and the defendant in agreement that the legislative history was . in the main, unclear, politically charged, and in the Court's view, to some degree based upon suspect constitutional interpretation of the powers of the President." Consequently, he concluded that ". Congress did intend for the executive branch to exercise some discretion with respect to allotments . . ." but agreed with the plaintiff's contention that "... the Congress could not have intended to give the Administrator the discretion to gut the Act." Judge Merhige thus declared that the announced policy of the Administrator to refuse to allot $6 billion of the designated $11 billion under § 205 of the Federal Water Pollution Act Amendments of 1972 constituted an abuse of discretion under the authority and powers conferred by the act, and accordingly, were null and void. It is not clear whether Judge Merhige would have reached the same conclusion had the President withheld part of the funds, but substantially less than $6 billion. The Fourth Circuit Court of Appeals remanded the case to the district court for further findings on the issue of whether the refusal to allot 55 percent of the authorized funds did indeed constitute such an abuse of discretion as to frustrate the congressional intent. The circuit court found that the mere fact of withholding of 55 percent of the authorized funds, without more, did not overcome the presumption of legality which attaches to administrative action. Judge Merhige's opinion raised another important issue; namely, whether the allegation that the Administrator had abused his discretion was subject to judicial review. Unlike the courts in City of New York v. Train, and other holdings, Judge Merhige did not declare that the Administrator had no discretion to refuse to allot the full amount authorized; nor did he order full allotment. Rather, he held that the allotment of only 45 percent of the authorized funds constituted an abuse of discretion, reasoning that the "syntactical history" of the act would probably require full obligation of the funds.48 The Administrator argued on appeal that a finding of "abuse of discretion" conferred discretion upon him; therefore, the court had no power to review an exercise of executive discretion because section 10 of the Administrative Procedure Act 49 provides that administrative action, the exercise of which is "committed to agency discretion," is not judicially reviewable. The court of appeals nevertheless agreed with Gasch that the issue of whether the Administrator had abused his discretion was judicially reviewable in this instance: When the executive exercises its responsibility under appropriation legislation in such a manner as to frustrate the congressional purpose, either by absolute refusal to spend or by a withholding of so substantial an amount of the appropriation as to make impossible the attainment of the legislative goals, the executive trespasses beyond the range of its legal discretion and presents an issue of constitutional dimensions which is obviously open to judicial review. And it was this issue and this issue alone to which the District Court 46 Campaign Clean Water, Inc. v. Train, 489 F. 2d 492 (4th Cir. 1973). 47 Supra. carefully restricted itself in this case. It specifically denied At least one district court would take issue with all the above holdings. In Brown v. Ruckelshaus,51 Judge A. Andrew Hauk dismissed plaintiffs' actions for lack of standing. Whereas plaintiffs in the other cases had submitted affidavits averring that the action of the EPA in withholding funds was causing applications to be held in abeyance, retarding projects underway, or adversely affecting future plans for water treatment facilities, plaintiffs in Brown failed to demonstrate an injury resulting from the EPA's action. The court found this omission "fatal." 52 However, the court went on in dictum to assert that, even with standing to sue, the plaintiffs were not entitled to relief on the merits. The court stated: Frankly, these words [the Act, secs. 207, 205(a)] are clear in their intent. Authorized sums must be allotted, and the sums may not exceed the maximum that Congress authorized. The statute requires no more than that, nor does the law . . . The legislative history of the Act supports our conclusion that the statute simply does not require that the EPA allot every authorized dollar. 53 The courts noted the opposite decisions around the country: With all due respect to the judges who wrote those opinions, we believe that they are not correct. Neither the amendments nor the sponsors' statements received proper attention in any of the decisions. No one has convinced us that when a legislature removes the word "all" from the phrase, “All sums authorized to be appropriated shall be allotted," they mean that every penny must be spent. Nor has anybody argued successfully that adding a phrase "not to exceed" before a sum means anything more than that an upper limit must be imposed. Even an appropriation act, which this is not, is not tantamount to a mandate to spend. [5 E.R.C. at 1810]. Other acts requiring full allotment or apportionment of congressionally appropriated funds are parts A and C of title V of the Elementary and Secondary Education Act of 1965,54 and the REAP program. 55 2. The Expenditure Stage of the Two-Stage Appropriations Process. Subsequent to the submission by the States of specific plans based upon allotments, the appropriate Cabinet official possesses discretion to approve or disapprove the plans, or certain aspects thereof. Courts have held that this discretion is limited by the language of relevant statute. The leading case in this area is State Highway Comm. of Missouri v. Volpe,56 in which the U.S. Court of Appeals for the Eighth Circuit held that the Federal Aid Highway Act of 1956 does not grant the Secretary of Transportation discretion to defer authority to obligate highway funds previously apportioned to the State of 50 Slip opinion at 16, 17. 51 Consolidated with City of Los Angeles v. Ruckelshaus, 364 F. Supp. 258 (C.D. Cal. 1973). 52 5 E.R.C. at 1806. 53 5 E.R.C. at 1808. 54 Pennsylvania v. Weinberger, 367 F. Supp. 1378 (D.D.C., 1973). 55 Guadamuz v. Ash, C.A. No. 155–73 (D.D.C., Dec. 28, 1973). 56 479 F.2d 1099 (8th Cir. 1973). Missouri, when the reasons given for the deferment by the Secretary and the Director of the Budget are the status of the economy and the need to control inflationary pressures. In the case of the Federal Aid Highway Act, there are two stages at which approval is required by the Secretary. The first stage is approval of broadly proposed projects submitted by the States, 57 based upon considerations of the adequacy of the interconnected system of interstate highways, importance to national defense, improved standards of safety benefits, and public access to airports and public ports, etc. The second stage of approval involves specific "[s]urveys, plans, specifications, and estimates for each proposed project," previously approved at the first stage.58 Criteria for approval or disapproval (contract controls) at the second stage are embodied in 23 U.S.C. § 109 (1970), and contemplate considerations of ". . . existing and probably future traffic needs and conditions in a manner conducive to safety, durability, and economy of maintenance," reasonableness of cost, etc. Nowhere does the statute grant the Secretary the discretion to base contract controls upon considerations of the status of the national economy; and the court held that the Secretary's only discretion is that expressly set forth in the act. The court found that the State of Missouri had met every statutory condition imposed by either the statute or the Secretary in formulating its specifications and plans, arranging for contractors, legislating the State's share, obtaining the land, and arranging contracts at the most reasonable cost. Because the State had incurred costs by this procedure, and would incur additional costs by further delay, the court would not allow the Secretary to withhold final approval by adding, in effect, an additional criterion neither expressed nor implied within the act. Accordingly, the Secretary was ordered to revoke contract controls with regard to the Missouri highway plans, and contractually obligate the Federal Government for the payment of its full proportional contribution. The court adhered to its construction of the scope of the Secretary's discretion even when conceding, arguendo, each of the Secretary's arguments; i.e, the general appropriations acts are permissive, not mandatory; that the States have no vested rights in the funds until final approval by the Secretary; and that specific language in the act regarding impoundment of funds was merely precatory, rather than mandatory. Regarding the first argument, the court cited an Attorney General opinion of February 15, 1967, in which Attorney General Ramsey Clark concluded that: 59 ... the Secretary has the power to defer the availability to the states of those funds authorized and apportioned for highway construction which have not, by the approval of a project, become the subject of a contractual obligation on the part of the federal government in favor of a state.5 While agreeing that this opinion supported the proposition that a general appropriation act does not mandate the expenditure of funds, the court could not concur that such a proposition would a fortiori endow the Secretary with the authority to use unfettered discretion 57 23 U.S.C. § 105 (a) (1970). 58 23 U.S.C. § 106 (a) (1970). |