Higher education appropriations

H.R. 13111 appropriates $859,633,000 for various higher education programs. This includes three items for carrying out the Higher Education Act of 1965: $159.6 million for educational opportunity grants under Title IV, Part A; $63.9 million for loan insurance under Title IV, Part B; and $154 million for college work-study programs under Title IV, Part C.

Section 401 of Title IV, Part A, of the Higher Education Act authorizes appropriations for educational opportunity grants. These grants are made by the Office of Education to institutions of higher education, which, in turn, award grants to financially needy full time students. Section 401 authorizes the appropriation of $100 million for initial year grants and such sums as may be necessary for second-, third-, and fourth-year grants.13

Section 405 provides that from the sums appropriated for initial year grants the Commissioner shall make an allotment to each State in accordance with its total full time enrollment. Sums appropriated for continuation grants are not allotted according to formula, but presumably in accordance with the need to follow up previous initial year grants.

Although funds are allotted among the States, payments are not made through the States. The Office of Education allocates funds within each State in accordance with "equitable criteria," § 406. Recipient institutions must enter into agreements with the Commissioner in order to be eligible to participate in the program.

Despite the provision for allotments by States, we believe that this program is discretionary. The Commissioner has broad discretion as to which institutions to make grants to and how much each is to receive; there is no provision for judicial review. Furthermore, because of the lump sum appropriation, the Commissioner is also granted discretion in allotting funds between initial year and continuation grants. It is extremely doubtful, therefore, that any institution could claim that it was entitled to a grant. It does not necessarily follow that because there is no designated or ascertainable recipient, there is no duty to spend. However, since there is at least a plausible case for regarding the program as discretionary, and, in our view, little likelihood that such a conclusion could be challenged in court, we believe that as a practical matter these funds may be impounded.

H.R. 13111 appropriates $63.9 million, to remain available until expended, for loan insurance programs under Title IV, Part B of the Higher Education Act. While participation in this program is apparently discretionary with the Commissioner, the major part of this appropriation, according to the budget justification, is for anticipated losses due to the death or disability of borrowers, $ 437. Therefore, impounding of these funds may not be feasible.

H.R. 13111 appropriates $154 million for work-study programs under Title IV, Part C of the Higher Education Act. These sums are used to provide parttime employment for students. The program is generally similar to Title IV, Part A, in that the Commissioner is required to allot funds among the States on a formula basis, but enters into agreements with institutions of his own selection within the States. For the reasons cited in our discussion of Part A, we believe these funds may be impounded.

H.R. 13111 appropriates $222,100,000 for Federal capital contributions to student loan funds pursuant to section 204 of the National Defense Education Act of 1958, 20 U.S.C. 424.

Title II, NDEA, provides that sums appropriated for this purpose shall be alloted among the States in accordance with total college enrollment figures, § 202 (a). Section 204 authorizes the Commissioner to enter into agreements with institutions of higher education for Federal capital contributions to the institution's student loan fund. Section 203 provides that the institutions with

13 The appropriation itself does not indicate how much is for initial year and how much for continuation grants. Presumably, Congress assumes that the Commissioner will determine how much is necessary for the continuation grants, and the balance will be available for initial year grants. Since the budget estimate was $175.6 million for both kinds of grants, we assume that at least $75.6 million is expected to be used for continuation grants.

It might be noted that the special programs for low income students authorized by section 408 of Part A are apparently not intended to be funded out of the $159.6 million appropriated for educational opportunity grants, but would be funded, if at all, out of the portion of the $859,633,000 appropriation not earmarked for specific programs.

which the Commissioner has agreements must file applications for such capital contributions. If the total amount applied for exceeds the State allotment available for the purpose, the contributions are made pro rata, § 203.

14

Although there is no provision for judicial review in Title II, the terms of the statute appear mandatory, and the recipients are identifiable. Consequently, the statute appears mandatory at least to the extent that eligible institutions apply for the full State allotment. Where a State's allotment has not been applied for," the Commissioner “may” reallot it, but apparently he is not obligated to do so. Other programs

We have concentrated in this memorandum on a few large-item appropriations in H.R. 13111. Obviously, we have been unable in the time available to examine in detail the smaller items in the Office of Education appropriation, some of which, at least, appear on cursory consideration to be for discretionary, programs. We might point out, however, that of the $859.6 million appropriated for higher education programs, $160 million is not earmarked for specific programs. This sum is apparently intended to be available for application in the Commissioner's discretion to those programs to which specific sums were not allocated. These programs appear to us to be discretionary, and the $160 million may, in our view, be impounded.

Remedies

We expressed the view in our previous memorandum that where the statute directs expenditures and the recipient is ascertainable, a judicial remedy would probably lie. Whether it would take the form of a suit against the United States in the Court of Claims or an action against the Commissioner of Education is not certain.

Where the statutes provided for judicial review, it is possible that that procedure could be used to challenge an impounding of funds, even though it could be contended that such review is authorized only for actions involving the disapproval of a plan or the withholding of funds for noncompliance with a plan. The point is that while precedents in this field are few, the trend in the law has been to supply the remedy once the right is recognized. If, therefore, a court can be persuaded that a prospective recipient has been injured by the failure of the Commissioner of Education to comply with the direction of the statute, it will in all likelihood devise a means of relief.

WILLIAM H. REHNQUIST,
Assistant Attorney General,
Office of Legal Counsel.

14 An applicant institution must put up one dollar for each nine dollars of Federal money, § 204 (2).

DEAR SENATOR ERVIN: In answer to your request I am enclosing a copy of an opinion of the General Counsel of this Department on the legal authority for the Department's action in terminating approvals of applications for cost-sharing under the Rural Environmental Assistance Program and for new contracts under the Water Bank Act. A copy of this opinion has been furnished Congressman Poage, Chairman, House Committee on Agriculture.

Sincerely,

EARL L. BUTZ,

To: Kenneth E. Frick, Administrator, ASCS.

Secretary. JANUARY 5, 1973.

Subject: Termination of Rural Environmental Assistance Program and Water Bank Program.

This is with reference to the request of the Chairman of the House Agriculture Committee for a statement of the legal authority for this Department's action in terminating the Rural Environmental Assistance Program and the Water Bank Program. The action referred to was action taken by the Department to terminate giving further approvals for cost-sharing under the REAP and to terminate giving further approvals of agreements under the Water Bank Program after the close of business on December 22, 1972. The Department stated, however, that it will honor requests for REAP assistance which were approved on or before December 22, 1972, and that it will continue water bank agreements which had been entered into on or before such date.

In our view the action taken by the Department is consistent with provisions of the legislation authorizing the REAP and Water Bank Program since that legislation authorizes but does not require that the programs be carried out by the Secretary.

The Department of Justice has issued opinions on the question of the Presidential authority to impound funds appropriated by the Congress to carry out a program. Memoranda from the Department of Justice dealing with the question insofar as it relates to funds appropriated for assistance to Federally impacted schools and other education programs appear in the Congressional Record at 116 Cong. Rec. pp. 343–351. The Department of Justice stated that in considering the authority of the President to impound funds for various items covered by the appropriation bill for the Department of Health, Education and Welfare it is necessary to consider

“... whether the pertinent legislation compels the obligation and expenditure of the full appropriation or leaves sufficient discretion to the Executive Branch to justify a Presidential directive to impound.

"A few general comments are in order. As we stated in our previous memorandum an appropriation is not in itself ordinarily interpreted as a direction to

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spend. To determine whether or not there is a duty to spend, one must examine the substantive legislation." page 345.

In the case of the REAP and Water Bank Program the substantive legislation clearly vests broad discretion in the Secretary with regard to the carrying out of the program including discretion as to the extent to which the programs should be effectuated. The REAP is carried out under sections 7 to 17 of the Soil Conservation and Domestic Allotment Act, as amended (16 U.S.C. 590g5900, 590p(a) and 590q). The purposes of the Act are set forth in section 7(a) as including:

“... (1) preservation and improvement of soil fertility; (2) promotion of the economic use and conservation of land; (3) diminution of exploitation and wasteful and unscientific use of national soil resources; (4) the protection of rivers and harbors against the results of soil erosion in aid of maintaining the navigability of water and water courses and in aid of flood control; . . ." Section 8(b) of the Act provides:

"The Secretary shall have power to carry out the purposes specified in clauses (1), (2), (3), (4), (5) of section 7(a) by making payments or grants of other aid to agricultural producers, including tenants and sharecroppers, in amounts determined by the Secretary to be fair and reasonable in connection with the effectuation of such purposes during the year with respect to which such payments or grants are made, and measured by (1) their treatment or use of their land, or a part thereof, for soil restoration, soil conservation, or the prevention of erosion; (2) changes in the use of their land. . ." (Emphasis supplied.) Section 15 provides: "To enable the Secretary of Agriculture to carry out the purposes of sections 7 and 8 there is hereby authorized to be appropriated for any fiscal year not exceeding $500,000,000."

The Agricultural-Environmental and Consumer Protection Programs Appropriation Act, 1973 (Public Law 92-399), provides in part "necessary amounts shall be available for administrative expenses in connection with the formulation and administration of the 1973 program for soil-building and soil- and waterconserving practices, including related wildlife conservation practices and pollution abatement practices, under the Act of February 29, 1936, as amended (amounting to $225,500,000 excluding administration . . ." (Emphasis supplied.) There are a number of requirements in the Soil Conservation and Domestic Allotment Act that apply to payments that are made under the program, such as conditions affecting payments, provisions relating to the division of payments among landlords, tenants, and sharecroppers and assignments of payments (16 U.S.C. 590h (d) to (g)). There are no provisions, however, in the Act which direct the expenditure of funds in carrying out the program. The declaration of Congressional policy in the Act does not constitute a mandate to the Department to approve all qualifying projects for which funds are available. Producers have no right to funds prior to the actual approval of an application and the carrying out by the producer of a project in accordance with his agreement with the Department.

Under the procedure followed in implementation of the program, a farmer who wishes to participate must submit a request to the county ASCS office for the Department to share with him the cost of carrying out on the farm conservation practices approved under the program. The county committee considers the request and within funds made available to the county issues a notice of approval for those practices for which cost-sharing is considered most essential towards the accomplishment of program goals. Section 14 of the Act provides that payments to claimants may be made "upon the certificate of the claimant . . . that he has complied with all other requirements as conditions for such payments and that the statements and information contained in the application for payment are correct and true . . ." 16 U.S.C. 590n.

The Department has announced that it will honor all commitments which have been made to producers (i.e., cases in which it has issued notices of approval of requests for cost-sharing). The determination to terminate the program does not affect these producers. It only affects those producers whose applications for cost-sharing have not yet been approved.

It should be noted that no appropriation has yet been made by the Congress to pay producers for compliance with the 1973 program of soil-building and soil- and water-conservation practices. Public Law 92-399 provided appropriations to pay for practices carried out under the 1972 program and authority to enter into contracts for the 1973 program in advance of appropriations therefor.