Finally, the report explained the recommended language with respect to reservation of funds as follows:

"Paragraph (2) of subsection (c) would authorize the officer making apportionments to establish reserves 'to provide for contingencies, or to effect savings whenever savings are made possible by or through changes in quantitative or personnel requirements, greater efficiency of operations, or other developments' subsequent to the date on which the appropriation, fund, or contract authorization was made available. For the reasons stated in the earlier part of this report, this authority is believed to be essential to sound financial management. It is recognized that this provision presents a policy question for decision by the Congress. It is recognized, also, that the authority which would be granted must be exercised with considerable care in order to avoid usurping the powers of Congress. However, appropriations are not regarded generally as mandates to spend money to the limit of such appropriations without regard to any considerations of efficiency or economy. In this connection, the authority to set up reserves would not be exercised with respect to appropriations exempted from the apportionment procedure by subsection (f).

"The granting of this authority, accompanied by the restrictions and safeguards contained in the quoted provisions of the proposed bill, would be in line with the action previously taken by the Congress in enacting the provision in the personnel ceiling law for the establishing of reserves where savings in salaries, wages, or other categories of expense are made possible by reason of reduced personnel requirements. Further, the authority to establish reserves to provide for contingencies appears to be essential if there are to be avoided hereafter the deficiency apportionments which heretofore have been made under the authority contained in the present law to waive or modify initial apportionments 'in emergencies or unusual circumstances.' Sound management clearly requires that such reserves be maintained, and the apportioning officer should be empowered to enforce the requirement." Id. at 20-21.

We believe it is clear from the foregoing that the authority to reserve appropriated funds conferred by the Antideficiency Act applies only to actions which are designed to achieve the most economical and efficient application of particular appropriations to their intended purposes. Without attempting to pass upon the general validity and ramifications of the argument that appropriations are permissive rather than mandatory, it may readily be observed that subsection (e) (2) of the act is based upon an approach that the executive is not required to spend or obligate every penny of every appropriation. However, this approach goes no further than the context of the subsection itself, i.e., achieving efficiency and economy in the implementation of specific appropriations.

The conclusions expressed herein are consistent with those of a number of writers who have considered the effect of the Antideficiency Act. For example, it is stated in Stassen, Separation of Powers and the Uncommon Defense: The Case Against Impounding of Weapons System Appropriations, 57 Georgetown L. J. 1159, 1178-79 (1969) (footnotes omitted):

"*** It is clear from the language of section 1211 that no general impounding authority was conferred. Withholding funds for reasons of efficiency and economy are the only instances given any statutory sanction: this limited authority does not extend to impounding when differences of strategic concepts are in issue. Furthermore, a broad interpretation would confer authority upon the executive branch to impound any appropriation at any time for any reason. This has never been Congress intention.

"A sharp distinction can and must be drawn between an executive refraining from spending money if he finds that a program can be implemented with less funds and an executive refusing to carry out a duly legislated policy of Congress. Therefore, the President's statutory authority to prevent the expenditure of funds provided by Congress is limited to effecting economy and efficiency in executing the purposes for which Congress has provided funds; there is no blanket statutory authority to impound funds provided by Congress. ***”

See also. Gerald W. Davis, Congressional Power to Require Defense Expenditures, 44 Fordham L. Rev. 39 (1964), Hearings, 569, 580–581; Louis Fisher. The Politics of Impounded Funds. 15 Administrative Science Quarterly 361 (1970), Hearings, 103, 115: Goostree, The Power of the President to Impound Appropriated Funds: With Special Reference to Grants-in-aid to Segregated Activities, 11 American Univ. L. Rev, 32 (1962), Hearings, 584, 586.

There are indications that even the executive branch recognizes the limited effect of the Antideficiency Act. Thus section 12.1 of Budget Circular No. A-34, OMB, Instructions on Budget Execution (July 1971), issued, in part, pursuant to the Antideficiency Act, states in part:

"Apportionments, reapportionments, and reserves are intended to prevent obligation of an account in a manner which would require deficiency or supplemental appropriations; to achieve the most effective and economical use of amounts made available; to provide for contingencies; and to effect savings."

Section 42.7 of the same circular provides in part:

"Reserves may be established by OMB on its own initiative, or at the request of agencies, to identify amounts which are not available for obligation. Reserves may be established as a result of changes in requirements, greater efficiency of operations or other developments subsequent to the date on which the budget authority was enacted. Reserves may also be established to provide for contingencies or for subsequent apportionment. * * See also, the definition of "reserves" set forth in section 21.1 (page 8) of this circular. In addition, at least the 1952 edition of the Budget Bureau's Examiner's Handbook stated: "Reserves must not be used to nullify the intent of Congress with respect to specific projects or level of programs." Williams, The Impounding of Funds by the Bureau of the Budget, supra, Hearings, 393; Stassen, Separation of Powers and the Uncommon Defense: The Case Against Impounding of Weapons System Appropriations, supra, 1179, n. 111. Finally, both Mr. Weinberger, in his testimony before the Senate Subcommittee, and the 1967 Attorney General's Opinion referred to previously specifically describe the Antideficiency Act only in terms of its express provisions. See Hearings, 95, 99-100; 42 Op. Atty. Gen., supra, 5. While both of these sources argue in support of a general authority on the part of the President to impound funds, the broader argument is based primarily upon constitutional provisions and statutory provisions other than the Antideficiency Act. For example, Mr. Weinberger maintains that Article II, section 3 of the Constitution, requiring the President to "take care that the laws are faithfully executed," authorizes or mandates impoundments in order to comply with the debt limitation or past spending ceilings, Hearings, 95–96. Also of interest in this regard is the testimony before the Senate Subcommittee by the Honorable William H. Rehnquist, then Assistant Attorney General for the Office of Legal Counsel. Mr. Rehnquist indicates that because appropriations are generally construed to be permissive rather than mandatory, executive impoundment is generally not inconsistent with congressional design. However, he expressed the view that in a situation where the Congress had clearly mandated a particular expenditure, the President would be required to comply except in matters relating to the President's constitutional prerogatives in the areas of national defense and foreign relations. Id., 233-235.

Attached is a brief summary of the effect of the specific language set forth in subsection (c) (2) of the Antideficiency Act based upon the considerations discussed herein.

Attachment.

TYPES OF RESERVATIONS OF FUNDS CONSISTENT WITH THE ACT Subsection (c) (2) of the Antideficiency Act, 31 U.S.C. 665, authorizes the reservation of appropriated funds, in making apportionments, for two specific objectives.

The first objective is "to provide for contingencies." This language authorizes reservations designed to provide for unforeseen or uncertain events which might otherwise create a need for deficiency or supplemental appropriations. For example, experience may indicate that the costs of certain programs or projects are difficult to estimate with precision.

The second objective is "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." This language authorizes reservations to take advantage of circumstances arising after congressional consideration of appropriations. Such authority is applicable primarily where the purposes which an appropriation was designed to fund cannot be accomplished; or where such purposes may be accomplished at less cost than anticipated. One example of the first situation might be a case in which appropriations are provided to fund research to

determine the cure for a certain disease, but a cure is found before any or all of the appropriation is obligated. Situations of the second type might arise on account of government reorganizations, improved technology, or other innovations.

It is clear that the provisions discussed above confer authority only in the context of achieving efficient and economical management of appropriations. This is accomplished by providing administrative flexibility to respond to changed circumstances arising after completion of the appropriations process. These provisions do not confer any authority to take actions on the basis of circumstances existing at the time appropriations were made and which were, therefore, within the purview of congressional consideration. In other words, no authority is provided to reconsider, modify, or negate congressional determinations.

Finally, the general purpose of these provisions-to achieve efficient and economical management of appropriated funds-relates to actions upon circumstances concerning the management of particular appropriations. For this reason, the act would not appear to authorize reservations based upon considerations of overall economy in government or other circumstances which do not relate directly to particular appropriations, and which would have the effect of reordering priorities determined by the Congress.

General

THE ITEM VETO

The concept of an item veto is almost exclusively a product of the States.1 Accordingly its precise meaning and application is dependent upon specific provisions of State law and judicial constructions thereof. However, this concept generally refers to a power conferred upon governors to disapprove particular portions—or "items"—of bills presented by the legislature while permitting the remaining portions to become law. The item veto power is generally limited to appropriation legislation; and, since it is a veto, is generally subject to being overriden by the legislature in the same manner as other vetoes.

The item veto first appeared in the provisional constitution of the Confederate States of America, adopted on February 8, 1861, which permitted the president to "veto any appropriation or appropriations, and approve any other appropriation or appropriations, in the same bill." This authority was retained in the permanent constitution of the Confederacy and, following the Civil War, was seized upon by many of the States. The Book of the States for 1972-1973 (Volume XIX), published by the Council of State Governments, indicates at pages 72-73, that 43 of the 50 States provide for an item veto. Those States which do not are Indiana, Maine, Nevada, New Hampshire, North Carolina (which have no veto in any form), Rhode Island, and Vermont. In addition, the following jurisdictions are listed as having an item veto: Guam, Puerto Rico, the Trust Territories of the Pacific, and the Virgin Islands. In 11 of those States which permit item vetoes, the governor may reduce items in appropriation measures. In the remainder he must apparently accept or reject "items" in their entirety.

Provisions concerning the item veto have been subjected to considerable litigation in the States. See generally 63 Am. Jur. 2d, Public Funds, § 53; annotations, 99 ALR 1277, 35 ALR 600, and 55 LRA 882. The issues arising most frequently in such litigation relate to the meaning and scope of the term "item"-which is generally held to describe separate and distinct portions of an appropriation measure-and whether authority to veto "items" extends to legislative conditions and directions concerning the application of appropriated funds. Congressional consideration of the item veto

The practice of adding legislative riders to appropriation bills, originated by Congress during the Civil War, and the adoption of the item veto by many States in the post-Civil War period gave rise to efforts for the provision of a presidential item veto. In his fifth annual message to Congress, dated December 1, 1973, President Grant first recommended a constitutional amendment to confer such authority. Actually his proposal was apparently to afford an item veto with respect to any legislation since he specifically requested an amendment "to authorize the Executive to approve of so much of any measure

1 It is interesting to note that the Congress has enacted item veto authority for Alaska and Hawaii (prior to statehood) and for certain territories.

passing the two Houses of Congress as his judgment may dictate, without approving the whole, the disapproved portion or portions to be subjected to the same rules as now, to wit, to be referred back to the House in which the measure or measures originated, and, if passed by a two-thirds vote of the two Houses, then to become law without the approval of the President." The Congress apparently made no response to this request.

In 1876, the first congressional action with respect to the item veto came in the form of a proposal by Representative Faulkner, of West Virginia, to amend the Constitution to confer upon the President authority to veto items in appropriation bills. Since the introduction of this measure, well over 100 legislative proposals have been introduced to this end, differing considerably in scope and detail. Some proposals would have applied the item veto to all appropriation bills, others to "general" appropriation bills, and still others only to certain specific appropriations, such as rivers and harbors bills. Some would have authorized the President to reduce, as well as to veto, items in appropriation bills. Some would have permitted item vetoes to be overridden by majority vote of both Houses, while others would have applied the two-thirds requirement applicable to vetoes generally. Such item veto proposals have never progressed very far in congressional consideration. In 1883 a motion to suspend the rules to discharge the House Judiciary Committee from further consideration of, and to pass, an item veto proposal fell short of the two-thirds majority vote needed, and was defeated. This was the only occasion prior to 1938 on which the item veto principle was subjected to a vote in either House.

Prior to 1938 all congressional item veto proposals took the form of proposed constitutional amendments. However, in 1937, Chairman Hatton N. Sumners of the House Judiciary Committee, responded to a request for an opinion of the Committee by concluding that the Congress could, without an amendment to the Constitution, authorize the President to veto separate items in appropriation bills. In 1938 an attempt was made to implement Chairman Sumners' opinion by introduction from the floor of the House of an amendment to the Independent Offices appropriation bill, 1939, H.R. 8837, 75th Cong. This proposal, known as the Woodrum Amendment, provided in part:

"*** The President is authorized to eliminate or reduce by Executive order, in whole or in part, any appropriation or appropriations made by this act, or any act or joint resolution, whenever, after investigation, he shall find and declare that such action will aid in balancing the Budget or in reducing the public debt, and that the public interest will be served thereby : Provided, That whenever the President issues an Executive order under the provisions of this section, such Executive order shall be submitted to the Congress while in session and shall not become effective until after the expiration of 60 calendar days after such transmission, unless the Congress shall by law provide for an earlier effective date of such Executive order ***." No provision was made for congressional disapproval of such Executive orders, thereby leaving as the only congressional remedy passage of original nullifying legislation. The Woodrum Amendment was adopted in the House. However, it was omitted from the version of the bill reported in the Senate and from the conference version. Proponents of the Woodrum Amendment noted that this provision was similar to the Economy Acts of 1932 and 1933, which authorized the President to eliminate or reduce agency functions and appropriations by Executive order. See 47 Stat. 413, 1518. They also argued that the provision was not an item veto since the President's action would occur after the enactment of appropriation legislation.

Apparently little activity concerning the item veto occurred following rejection of the Woodrum Amendment until 1949, when, as a result of concern over the inability of Congress to fix a total expenditure ceiling and the increased emphasis upon consolidated appropriations bills, Senator Hunt and several cosponsors introduced S. 2161, 81st Cong. This bill authorized the President to strike out all or part of items of appropriations which he deemed "not in the public interest." The bill further provided that the Congress might reappropriate stricken items by simple majority vote, in which event the President could not again strike such items. S. 2161 was referred to the Committee on Government Operations, which eventually voted to indefinitely postpone action on the measure. In 1952 Senator Humphrey and several cosponsors introduced a bill. S. 2602, 82d Cong., which provided in part for the modification of the rules of the two Houses to authorize a Presidential item veto of appropriations subject to being overriden by the twothirds vote applicable to other vetoes. Identical bills were introduced in subse

quent sessions. See S. 1006, 83d Cong., and S. 1902, 84th Cong. Each of these bills was referred to the Government Operations Committee, which took no action. On July 13, 1959, a number of senators introduced S. 2373, 86th Cong., a bill generally similar to the Woodrum Amendment, discussed previously, which would have authorized the President to eliminate or reduce appropriations items by Executive order. Also during the 86th Congress Senator Keating and several cosponsors introduced a resolution, S.J. Res. 44, to establish the item veto by constitutional amendment.

Proposals to confer item veto authority with respect to appropriations have been introduced in every session subsequent to the 86th Congress. The most common version-particularly in the more recent sessions-has been a proposed constitutional amendment. Representative of this approach is H.J. Res. 299, 92d Cong., which would have amended the Constitution to provide, inter alia:

"*** The President may approve any appropriation or provision and disapprove any other appropriation or provision the same appropiation bill. In such case he shall, in signing the bill, designate the appropriations and provisions, with his objectives, to the House in which the bill shall have originated; and the same proceedings shall then be had as in case of other bills disapproved by the President. ***"

A different approach is illustrated in S. Con. Res. 2 and H. Con. Res. 179, 87th Cong., which proposed to amend the joint rule of the two Houses contained in section 138 of the Legislative Reorganization Act of 1946, 60 Stat. 832, to require that no bill or joint resolution making appropriations or authorizing the borrowing of money directly from the Treasury be reported to or considered by either House unless it contained item veto authority similar to that provided under H.J. Res. 299, quoted above. A third approach has been to amend the Constitution to authorize the Congress to enact legislation providing for and regulating the item veto. See H.J. Res. 62, 98, and 212, 87th Cong.

Constitutionality of legislation conferring the item veto

Article I, section 7 of the Constitution provides in part:

"Every bill *** shall ** * be presented to the President of the United States; if he approves he shall sign it, but if not he shall return it. * *

It has been pointed out that the quoted language "seems to afford the President only two alternatives-either sign or return the bill", and, accordingly, “it has apparently been generally assumed that such power could be conferred upon the President by constitutional amendment alone." Zinn. The Veto Power of the President (1951) 33, 34. The latter observation is consistent with the previous discussion of legislative proposals prior to 1938 and most recent proposals. In addition, Senator Vandenberg noted in a 1942 speech in support of the view requiring a constitutional amendment that all of the States which recognized the item veto had done so by constitutional provision or amendment. SS Cong. Rec. 3694.

As noted previously, Chairman Sumners expressed the view that a constitutional amendment was not necessary. The Chairman's opinion referred to the language of Article I, section 7 that the President shall sign or return a bill, but added:

"Does the word 'bill' necessarily mean all the separate items assembled under one caption, each of which might have been considered the subject matter of a separate bill but which for convenience sake in expediting the public's business are assembled under one caption? It is clear that the sole purpose (of the veto provision in the Constitution) is to make certain that no item of proposed legislation shall be law until it is approved by the President, or, if disapproved by the President, is again passed by both Houses by two-thirds vote, the objections of the Persident notwithstanding.

***When, therefore, the Houses of Congress, in order to add to their efficiency, guided by their judgment, and acting under their responsibility to the people in the discharge of their constitutional responsibilities so draw an appropriation bill that in their judgment each item may be separately considered by the President and approved or disapproved, and as drawn and approved items may stand as complete and harmonious items of legislation while the items disapproved may be sent back to the Congress for further consideration, they act, it seems clear to me, within their constitutional powers and discretion." 83 Cong. Rec., Appendix, 200, 201.

There is no indication that the framers of the Constitution ever considered the possibility of an item veto. Indeed, this concept did not originate until the Civil