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ment did not comply with the intent of the Antideficiency Act, and that the Pentagon had firmly committed the United States to buy four missile systems at a unknown cost. Although GAO advised the Pentagon to take certain actions, the Defense Department in December 1970 stated that it did not agree that there had been any violation of law and that it did not consider any corrective action necessary.

The GAO also clashed with the executive branch over the legality of the “Philadelphia Plan.” In order to work on' federally assisted projects, contractors had to set specific goals for hiring members of minority groups. On August 5, 1964, the Comptroller General issued a decision in which he held that the Plan conflicted with the 1964 Civil Rights Act, which prohibited the setting up of any kind of preferential treatment on the basis of race, color, or national origin. The Comptroller General said it did not matter whether one designated the hiring commitment as a "goal” or a “quota."177 The Secretary of Labor promptly announced that the Administration would continue to press ahead with the Philadelphia Plan. He said that interpretation of the Civil Rights Act had been vested by Congress in the Department of Justice and that the Department had approved the plan as consistent with the Act.'78 Moreover, the Secretary of Labor said that the Comptroller General had ignored the President's Executive Order “as an independent source of law."!** The U.S. Court of Appeals for the Third Circuit later upheld the legality of the Philadelphia Plan. The court justified this use of Presidential power partly on the Chief Executive's implied power—as it relates to economical procurement policy-co assure that "the largest possible pool of qualified manpower be available for the accomplishment” of federal projects. 180

GAO reviews, as in the case of payments to Free World Forces, have been hampered by administrative delays and by refusals on the part of executive agencies to allow GAO investigators access to future planning information, routine evaluative reports, and program evaluation group reports. To offset such difficulties, it has been proposed that the Comptroller General should have subpoena authority to compel agencies to make available books, accounts, and other contractor records required for a GAO investigation. At least forty executive agencies, independent boards, and commissions have subpoena powers now.182

GENERAL ACCOUNTING OFFICE, REPORT TO THE SENATE COMM. ON FOREIGN RELATIONS ON UNITED STATES ECONOMIC AND MILITARY FOREIGN ASSISTANCE PROGRAMS 36-37 (Comm. Print 1971).

49 Comp. Gen. 59 (1969), reprinted at 115 Corg. Rec. S9176-79 (daily ed. Aug. 5, 1969).
42 OP. ATTY GEN: 37 (1969), reprinted at 115 Cong. Rec. $11,318 (daily ed. Sept. 25, 1960).
115 Cong. Rec. S9954 (daily ed. Aug. 13, 1969).

Contractors Ass'n of E. Pa. v. Secretary of Labor, 442 F.2d 159, 171 (3rd Cir. 1971), cert. dens 404 U.S. & 4 (1971).

151 Hearings on Erecutive Privilege: The Withholding of Information by the Executive Before the Senate Comm. on the Judiciary, 92d Cong., ist Sess. 303-15 (1971).

Hearings on the Capability of GAO 10 Analyze and Audit Defense Expenditures Before the Senate Comm. on Government Operations, gist Cong., ist Sess. 105-06 (1969). During the fall of 1970 the Senate passed a bill (S. 4432, gist Cong., 2d Sess.) designed to strengthen GAO access to departmental records, but the bill was not acted upon by the House.

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CONCLUSION We know from other studies, with a fair amount of detail, the discrepancies hat exist between the President's budget requests and the amounts authorized w Congress. Comparable gaps exist between what is authorized and what is ppropriated. On these areas of the budget process we know a great deal. In contrast, ve know embarrassingly little about the expenditure phase. Why are there disrepancies between what is appropriated and what is spent? What, if anything, hould be done about it?

The information supplied in this paper should provide advocates of reform with a little better understanding of what the problem is and why past efforts at reform have not always produced beneficial and predictable results. It frequently happens that the adoption of a reform proposal, intended to drive out one evil, simply creates another that proves harder to extirpate. Take away the power to make ransfers, and agency officials pad their budgets. Eliminate discretionary authority altogether, and agency officials incur deficiencies. Give the President the power to allot funds—as a means of preventing deficiencies and he uses that power to impound funds and further his own policies.

The reform advocate is therefore advised to regard executive spending discretion as an essential, ineradicable feature of the budget process. Expenditures deviate from appropriations for a number of reasons. Appropriations are made many months, and sometimes years, in advance of expenditures. Congress acts with imperfect knowledge in trying to legislate in fields that are highly technical and constantly undergoing change. New circumstances will develop to make obsolete and mistaken the decisions reached by Congress at the appropriation stage. It is not practicable for Congress to adjust to these new developments by passing large numbers of supplemental appropriation bills. Were Congress to control expenditures by confining administrators to narrow statutory details it would perhaps protect its power of the

purse but it would not protect the purse itself. Discretion is needed for the sound management of public funds.

While there no doubt exists a need for executive flexibility, that is an abstract term capable of hiding much mischief. The executive branch complains about the vast amount of “uncontrollables" in the budget and yet somehow comes up with a hundred million dollars to finance the Cambodian intervention. It is evident that in a number of areas, including covert financing, impoundment, reprogramming, transfers, and unauthorized commitments, Congress has yet to discover a satisfactory means of controlling expenditures. Public policy is then decided by administrators rather than by elected representatives and the funds they provide.

The results are often incongruous. Congress goes through the formality of authorizing and appropriating funds but the money is never spent. On the other

hand, Congress can find itself locked into paying for administrative commitments · it never authorized. The expenditure process is one in which administrators must

enjoy substantial discretion in exercising judgment and in taking responsibility for their actions, but those actions ought to be directed toward executing Congressional, not administrative, policy. It is up to Congress to make that policy clear ard consistent.

“THESE PARCHMENT BARRIERS :" A ESSAY ON THE VITALITY OF A CONSTITUTIONAL

IDEA (By David B. Frohnmayer, Assistant Professor of Law, University of Oregon

Law School)

Winning Essay, Samuel Pool Weaver Constitutional Law Essay Competition
"To what expedient, then, shall we finally resort, for maintaining
in practice the necessary partition of power among the several
departments, as laid down in the Constitution?.... [T]he great
security against a gradual concentration of the several powers in
the same department consists in giving to those who administer
each department the necessary constitutional means and personal
motives to resist encroachments of the others. . . . Ambition must
be made to counteract ambition. The interest of the man must be
connected with the constitutional rights of the place.”

JAMES MADISON,
(Publius) The Federalist No. 51.

I. INTRODUCTION

The bicentennial decade in American history is an appropriate time for reflection on the continuing vitality of the original constitutional theories underlying the nation's political structure. But an exploration of the current status of constitutional concepts in the United States is more than an academic exercise in nostalgia. Burning and unresolved questions regarding the legi. timacy of governmental power to wage a bitterly divisive war, to impose per vasive regulation of the national economy, and to expand or restrict personal liberties all constitute the focal points of contemporary political controversy. Concerns about the exercise of such governmental powers inspired the framers of the Constitution to establish a clearly articulated and elaborate institutional architecture for the limitation of authority.

In only slightly oversimplified form, the three original components of the American constitutional structure are familiar to any students of elementary civics : Through the federal system, the exercise of governmental authority was to be divided between the national government and the states; in accordance with the principle of separation of powers, the operations of the national govern. ment itself were allocated among three independent institutions; and finally, by virtue of certain explicit restrictions in the body of the Constitution and in the Bill of Rights, governmental power was made subject to specific limitations in favor of individual liberty.

The original conception has been altered dramatically by the passage of time. In the almost two centuries which have since elapsed, the Civil War Amendments, the doctrine of incorporation, the growing political assertiveness of minority groups and a burgeoning judicial sensitivity to questions of personal liberty have all led to an expansion of constitutional protections in favor of the individual. At a rapidly accelerating pace following in the wake of a depression, two world wars, continuing international tensions, and the growth of an increasingly complex industrial society, the federal conception of shared power succumbed little by little to the practical realities of inadequate or unresponsive local government, to social and economic problems of nationwide scope, and to the evolution of new Constitutional theories, most notably those invoking the Commerce Clause, (1) which insured that national power to address any given problem would be virtually plenary. Finally, this same period witnessed the phenomenal growth of Presidential power and a diminution in the original fears of legislative tyranny articulated by the framers. (2) There is indeed a growing sense of agreement that in terms of the original conceptions of the framers, the most unsettled and the most important substantive consitutional issues which remain are those concerning the allocation between the executive and legislative branches of the awesome array of national governmental powers. The most pressing problem, in consitutional theory, and political impact lies not in determining the extent or the definition of such powers, singly or in the aggregate. Rather, this essay addresses those perennial questions regarding the proper forums for resolving jurisdictional disputes between constitutionally coordinate branches of the national government in the exercise of such powers.

TO The resolution, it is submitted, lies not so much in elaborating novel doctrines

and techniques of legal analysis, as much as it inheres in the adaptation of

traditional constitutional conceptions to the institutional realities of twentieth the century America. The proper resolution has more to do with a mode of thinking

about constitutional problems in light of the constitutional structure of powers than it does with the intricacies of legal doctrine. A living Constitution, after

all, is shaped as much by the minor encroachments, practical operations, and varie continuing adjustments of daily institutional relationships as it is by the occa

sional landmark judicial decision. TH: A Constitution is inescapably the embodiment of a political theory. It takes no * great insight, therefore, to conclude that principles which guide determinations

as to the allocation of power under that Constitution are implicitly theories of political organization. Given the existence of a written text, almost two centuries of historical experience, and a body of Supreme Court Judicial doctrine. these legal principles can no longer be woven out of whole cloth. And likewise, no analysis can proceed without an appreciation of the present realities of political power; a task which, no doubt, would be much simpler were those realities ever to be perceived identically by any two observers. (3) But political consensus can help to maintain Constitutional authority; and a system of dispute resolution which becomes so obscured with legalisms that it is incomprehensible to the citizen endangers at the same time both its efficacy and the political utility of a constitution itself.

One further and related introductory caveat is in order. Lawyers, particularly, may take too much comfort in de Tocqueville's comment (which, after all, was a sociological observation more than a paean of praise) that Americans tend to transmute all political controversies to legal, and ultimately to constitutionally justiciable questions. As war is too important to be left to generals, so the Constitution is too important to be left to the lawyers, at least to lawyers alone. Commentators eager to argue the constitutionality of governmental action thus all too often do not pause to consider anew the alternative methods by which a political system might decide such issues. Rarely do decisions concerning the allocation of national power between President and Congress proceed in view of a consistent theory of political and constitutional structure. Partly because of the impact of a tragic and unpopular war in Indochina, the political merits color views as to the meaningfulness and propriety of a judicial decision on the issue. However, if the principle of legality means anything at all, issues must be analyzed in a context broader than the particular events which compel their consideration. It is in fact (depending on one's view of the merits) not “political cowardice", and yet it is something wholly apart from more traditional notions of "wise judicial statesmanship” and “judicial self-restraint" to suggest that important issues concerning the allocation of constitutional powers can be determined without reference to the Federal Courts, judicial review, and quasitheological disputations over the meaning of the “political questions' doctrine (4). Nor is it escapist or irresponsible to suggest that the institutions of the Presidency and Congress must themselves bear primary responsibility for drawing many jurisdictional lines. All governmental officials, not just Supreme Court Justices, are oath-bound to support the Constitution; and the first step toward the reasumption of coordinate constitutional authority is a clear assignment of constitutional responsibility.

A preliminary analysis can thus be set forth which deemphasizes the judicial role and which particularizes the contexts within which the forums for decision must be chosen. It explicates the role of constitutional structure, including the contemporary relevance of the separation of powers doctrine, and possesses the inestimable advantages of candor, political viability, and historical legitimacy.

In short, a new Federalist for the twentieth century would demand discovery of new doctrines of justiciability less than it would require a respect for existing constitutional architecture coupled with the willingness of each respective institution, particularly the Congress, to assert itself appropriately. That the concept of coordinate powers is no dead letter was recently reaffirmed when the Senate abruptly withheld its constitutional power of “consent" to two successive Supreme Court nominations by the President. This was not an adjudication ; it was, however, a "constitutional" decision of historic moment (5).

II. THE PERSISTENCE OF THE SEPARATION OF POWERS DOCTRINE Historical experience has put to rest the founders' fear that the greatest threat to constitutional balance would lie in “legislative despotism". The story of the expansion of Presidential power in the twentieth century through the resourcefulness of “strong" Presidents, the continuance of historical forces favoring unified leadership, and the delegation, if not abdication, of Congressional power has been adequately chronicled elsewhere. (6) The extent of the shift to executive power is now so great as to throw into question the continuing viability of the separation of powers doctrine. Although the doctrine is not without its strong defenders, (7) an early burial of the concept would hardly dis appoint some distinguished critics. Kingsley Martin noted the American version of Montesquieu's theories and added : “no device was ever so hampering as the separation of powers." (8) Herman Finer has argued that Montesquieu's theory "drew the United States into a system of government, of which one may say at the best that the people are happy in spite of it. ..." (9) Karl Lowenstein termed the doctrine a product of "mechanistic thinking," and, in the twentieth century," obsolete and devoid of reality." (10) The latter author adds : "Where political power is concentrated in the hands of a strong Executive

the concept of shared political power that the separation idea implies is so clearly incompatible with the reality of the executive ascendancy that the concept is flouted in practice." (11).

Though there is now convincing evidence that the separation of powers concept was not engrafted mechanistically from Montesquieu's theorizing but had solid and pragmatic roots in the American Colonial experience, (12) the question remains whether the doctrine is still an intelligible constitutional theory. In fact, in the current age, the doctrine is notable not for its demise, but, at least in the rhetoric and reasoning of landmark Supreme Court decisions, (13) for its extraordinary resilience. Unless there is to be an unbridgeable hiatus between constitutional doctrine and political reality, no theorizing can fail to come to grips with this apparent anomaly. The opinions, however, provide little theoretical discussion about the contemporary meaning of the doctrine itself,

Obviously, there is considerable question how long a doctrine frequently misunderstood both by its critics and by its adherents can be expected to survive. Criticism based on the theoretical clash between the notions of separation and cooperation among coordinate branches largely disappears when it is demonstrated that complete separation was never intended, and that overlapping functions were deliberately created. (14) Indeed, the Federalist political theory of institutionalizing interest conflicts could not be expected to work without large degrees of overlap. Yet the doctrine is also oversimplified if it is seen as establishing analytically distinct categories of governmental functioning. (15) If this view were literally compelled by the Constitution, and if separate functions must remain in separate institutions, it is difficult to see, for example, how the Congress could constitutionally establish the administrative agencies. Such agencies possess power to make rules-to “legislate" for the future by selection of broad policy goals,-and to apply that policy by investigating and adjudicating the cases of alleged violators-in short, to perform "executive” and “judicial" functions. (16) If the categories are literally to be distinct, then addition of the prefix "quasi" before the function is surely both analytically faulty, and constitutionally hypocritical.

In fact, the functions, as actually performed by the various branches of the national government, overlap considerably. The President has “legislated" (albeit sometimes within broad limits set by Congress) by veto, by establishing war policies involving naval blockades, (17) by setting tariff policies, (18) and by imposing pervasive controls on the nation's economy. (19) The Supreme Court surely performs major tasks of policy articulation indistinguishable in end result from legislation when it sets out general rules of automobile safety (20) or exclusionary rules of criminal procedure. (21) And the Congress, although not without constitutional limitations, exercises explicit and immense powers of “adjudication" over its internal affairs. (22).

But an analysis of the legitimacy of the exercise of these separated powers which proceeds by attempting to elaborate functional characterization of the end product as judicial, legislative or executive in nature is surely unsound. The branches and functions of government are distinguishable not by the impact of the end product of the activity, but by the process of decisionmaking,

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