strengthen the rightful role of the Congress to share with the Executive on a coequal basis, the formulation of national policy, whether it be in matters of war and peace, the allocation of American assistance abroad, strengthening our social security system here at home, improving our environment, or steering budgetary priorities along the path of productive and needed social services. The history of our nation provides ample proof that if the separate branches remain strong and vital they are an effective system of checks and balances on the exercise of unfettered power; this system of restrained power is the bedrock principle on which our political system was founded and has been the very genius of our form of government. As Aristotle noted long ago, "If liberty and equality ... are to be founded in democracy, they will be best attained when all [institutions] share in government to the utmost." In this regard, Congress' prime role is its power over appropriations and directing the allocation of federal funds. Or, to put it as the distinguished Chairman of the Judiciary Subcommittee on the Separation of Powers so concisely did recently, "The power of the purse belongs to the Congress, and Congress alone." This power is the key to Congress' independence, influence, and integrity.

IMPOUNDMENT

Under the Constitution, the right to appropriate belongs to Congress. Article I, Section 9.7, of the Constitution reads, "No money shall be drawn from the Treasury, but in consequence of appropriations made by law. . ." In this century, however, through a process of subtle attrition, Congress has gradually surrendered this traditional wellspring of strength. For example, the Budget and Accounting Act of 1921 enlarged the President's spending discretion and established a procedure whereby the Executive no longer needed to send up to Congress itemized budget requests as had been the custom, and replaced this procedure with a budgeting and appropriating system based on a "keep the faith" attitude among executive officials and appropriations committees." The Act also created the Bureau of the Budget. now reorganized into the potent Office of Management and Budget. This legislation has, over a period of years. tilted the balance of political power clearly in favor of the Executive. Instead of "More Power to Congress!" as was the Hamiltonian demand during the discussions preceding the Philadelphia convention in 1787. Congress, divesting itself of its own power, granted "More power to the Executive!"

Through the growth of "central clearance," then, the appropriations power, once exclusively a legislative function, emerged as a strong new arm of the Executive. One observer suggests with devastating candor that “Congress, according to the Constitution, must appropriate-but what is appropriated, speaking very generally, is what is presented to them by the Administration." The grow ing volume and complexity of governmental transactions, and the flexibility with which they must be handled in the absence of Congressional efforts to adapt its procedures to handle greater complexity, inevitably has led to increased Executive control over public spending. In the light of the major role that the Executive branch has assumed, the importance of safeguarding what remains of Congressional power over the purse is manifest.

Executive impoundment represents a clear threat to that remaining Congressional power, as recent history illustrates. In my view, it was during the Roosevelt Administration, acting under a continual state of emergency in the Depression and later in World War II, that Executive impoundment changed its character from that of simple economy measures and became a widely used instrument for Executive policy. From 1933 on, a quantum jump occurred in the frequency of impoundment. Measures were passed by Congress to permit President Roosevelt to pursue those activities he deemed necessary to ease the economic crisis of the Thirties; and, similarly, during the Forties Congress supported the President in his policy of deferring projects which he believed might absorb funds required for the war effort.

Throughout this period of crisis, the Executive branch based its rationale for impounding funds chiefly upon the war powers of the President. Writing a year

2 Politics, Book IV, Chapter 4.

3 New York Times, Jan. 22, 1973.

* Act of June 10, 1921, ch. 18, 42 Stat. 20.

5 Fisher. "Presidential Spending Discretion and Congressional Controls," Law and Contemporary Problems, Winter 1972.

Miller "Presidential Power to Impound Appropriated Funds: An Exercise in Constitutional Decision-Making," 43 N.C.L. Rev. 506 (1965).

after America's entry into the war, a leading proponent of a strong presidency, I'rofessor Edward Corwin, concluded: "The chief lesson of the war to date for constitutional interpretation is that the Constitution is an easily dispensable factor of our war effort-perhaps one might say an 'expendable' factor." Professor Corwin underlined part of the problem :

"In its control of the purse strings, Congress possesses its most effective check on Presidential power. At best, the promise of this rule is seriously impaired by war, inasmuch as legislative prying into Presidential budgets at such a time always involves the danger of revealing military secrets." Congressional abdication of its "most effective check on Presidential power," the power of the purse, was, thus, directly linked to the war. However, several Members of Congress, I am happy to note, were clearly unhappy about their wartime "expendability" and were concerned that the claimed emergency powers might become normal powers. A legislative amendment introduced by Senator McKellar in 1943 was "the first across-the-board curtailment of the Budget's impounding procedure to be accepted by either House of Congress." After passing the Senate by a voice vote, the McKellar amendment was resoundingly defeated in the House, the floor debate over the issue, however, made it evident that even given the wartime emergency, many influential Members believed that the Executive had stepped into Congress' domain and a Constitutional crisis was in the making.

The record on impoundment since the war discloses that-far from abating— the practice has grown markedly, expanding beyond the general area of “national defense" to challenge frontally Congressional control over all aspects of civilian spending.

CURRENT CONSTITUTIONAL CRISIS

Breaking the Executive's hardening habit of impoundment is now one of the crucial tests before us-if Congress and Constitutional government are to survive. To salvage a position of power and policy, both bodies of the Congress must draw the line; Members need to live up to their oath of office and join together in a concerted effort to restore the power of the purse as required by the Constitution. Your bill, Mr. Chairman, S. 373, which I wholeheartedly cosponsor, requiring the President to come to Congress for affirmative votes by both Houses for each specific instance of impoundment, is a fitting legislative bulwark on which to stand and fight. The Supreme Court, represents, one would hope, another forum for fortifying Congress' dominant position in regard to control over the purse* where suit might be brought against the Executive for impounding federal funds. As you are aware, Mr. Chairman, I have given the subject of executive impoundment some detailed thought, and I very much appreciate the fact that my Stanford Law Review article of June 1970 entitled "Impoundment of Appropriated Funds: The Decline of Congressional Control Over Executive Discretion" was made a part of this Subcommittee's March 1971 hearings. Since I wrote that law review article, however, the situation has worsened. According to recent press reports," the Nixon Administration is currently withholding, freezing, and impounding at least $12.2 billion of appropriated funds; and according to some experts, that figure may be too low by several billion dollars.

10

Seen with startling regularity now are references to the impoundment of funds for highways, for combatting water pollution, for housing, for flood control projects, for hospital construction, for medical research, and other important domestic programs. Is Congress to pass legislation creating and funding programs and then plead with the White House to release the funds to implement duly enacted laws? Surely not! As Thomas Jefferson wrote long ago, "An elective despotism was not what we fought for," in our War of Independence." The words of a Senator who served in this body during World War II, speaking on the impoundment

Williams, "The Impounding of Funds by the Bureau of the Budget," Inter-University Case Program No. 28, 1955, 6. On January 2, 1973, eighteen U.S. Senators filed an amicus curiae brief in the case of Missouri Highway Commission against Volpe.

* Rep. George E. Brown, Jr. vs. Administrator, U.S. Environmental Protection Agency: See Congressional Record. Jan. 23, 1973, H404. Another example of litigation is the suit filed by Campaign Clean Water, a group of Virginia conservationists, against the Environmental Protection Agency to force its administrator to release the full $11 billion approved by Congress for grants to states under the 1972 Water Pollution Control Act.

is See also Church, "Of Presidents and Caesars: The Decline of Constitutional Government and the Conduct of American Foreign Policy." 6 Idaho Law Review (1969). 11 Washington Evening Star-News, January 15, 1973.

12 Thomas Jefferson, Notes on Virginia, Query 13, Jan. 14, 1784.

issue, are even more poignant today: "Then how does the Congress express itself or announce a Congressional policy? After all, we represent the people."

13

If the United States is to preserve its democratic institutions, the President cannot be allowed to continue his self-appointed privilege of ignoring a mandated appropriation.

CONSTITUTIONAL AND POLITICAL IMPLICATIONS

What are the Constitutional and political implications of executive impoundment? Louis Fisher, a learned authority on this issue, pursuing the answers to this question, has observed, “A constitutional issue emerges only when Congress finds a legislative program cancelled or abbreviated because the President considers the purpose unwise, wasteful, or inexpedient. He then no longer operates on the basis of legislative authority. On the contrary, he matches his will against that of the Congress." This kind of arbitrary behavior by the Chief Executive, who, according to the Constitution, is supposed to see that "the laws are faithfully executed," is illegitimate and a threat to representative government. As one author concluded, "The high Constitutional duty to see that the laws are faithfully executed does not confer upon the President the discretion to determine what law shall be executed and how much." 15

Those who have carefully examined the range of court decisions bearing on the impoundment issue have concluded that no cases involve the problem directly, and those cases that are of tangential significance fail to settle the issue.1a "The relationships between the President and Congress are essentially political,” a Constitutional authority observes, "and are to be solved by the operation of the political process, not by resort to legalistic arguments."

99 17

Recognizing that the Constitution offers no specific guidelines concerning the "reserving" of appropriated funds, it is nonetheless plain that the authors of that document did not intend to give the Chief Executive an absolute veto over public spending. No item veto is specifically granted to the President by the Constitution, and the provision for overriding a veto upon a two-thirds vote lends credence to the proposition that the President has no Constitutoinal power to veto legislation absolutely. If the President or his subordinates are permitted at will to refuse to spend funds after an appropriations statute has been signed into law, then in essence these officials have "an absolute veto exercised without danger of being overridden by a two-thirds vote of Congress."

99 18

The Constitution in certain specific cases seems to grant to Congress actual affirmative power rather than the right merely to limit spending. In the military sphere, for example, the constitutional prerogative of Congress to "raise and support armies" and to "provide and maintain a Navy" carries with it the implication that Congress may ensure that the funds for these military activities are expended in the manner determined by Congress. Similarly, in other areas of spending, the congressional power of the purse is not simply negative power to establish a ceiling, but rather a full and positive authority to compel expenditure of the funds. A former Assistant Attorney General and now Associate Justice of the Supreme Court, stated, "With respect to the suggestion that the President has a constitutional power to decline to spend appropriated funds, we must conclude that existence of such a broad power is supported by neither reason nor precedent." 20 Every refusal by the President to execute a program or project, once made law, is nothing less, then, than the exercise of a patently unconstitutional absolute veto.

A vital ingredient of democracy in our country is the opportunity afforded diverse political interests-civic groups, government agencies, private citizens, and others to appeal in a meaningful way to the Congress, the courts, and the Executive branch to advance the policies they favor. Once it is widely

13 Remarks of Senator Holman quoted in Williams. "The Impounding of Funds by the Bureau of the Budget," Inter-University Case Program No. 28, 1955, 6.

14 Fisher, "Funds Impounded by the President: The Constitutional Issue." 36 George Washington Law Review, 124, 125-26 (1969) (Emphasis in original).

15 Goostree, "The Power of the President to Impound Appropriated Funds: With Special Reference to Grants-in-Aid to Segregated Activities," 11 American University Law Review, 32.39 (1962).

16 L. Fisher. "Funds Impounded by the President: The Constitutional Issue," 38 George Washington Law Review. 124 (1969). See my Stanford Law Review article, 1249, for a listing of cases pro and con impoundment.

17 Miller, Op. Cit. 544.

18 S. Huntington, "The Soldier and the State." 1957, 427.

19 W. Morrow, Congressional Committees, 1969, 161.

20 Memorandum from Assistant Attorney General William H. Rehnquist to Edward L. Morgan, Deputy Counsel to the President, Dec. 1, 1969, at 8.

recognized that a project may be entombed by the Executive branch-even when a convincing case has been made before the Congress and after due deliberation monies have been appropriated-the American people will sense the futility of appealing to their elected representatives. They will conclude, if they haven't already done so, that the Executive branch is the only significant arena for policy making. This undermining of confidence in the ability of Congress to act with authority on appropriations will eventually destroy what public reliance remains for the Legislature and thereby increase the power and authority of the Executive to the detriment of our system of separate institutions acting as checks and balances on one another.

The argument most readily embraced by proponents of impoundment may be stated generally as follows: The question of freezing funds is fundamentally of a political nature, and, in an era demanding administrative speed and efficiency, presidential discretion over funds is imperative. Hence, Fisher tells

us:

“The struggle between the President and Congress over impounded funds is essentially political. The decisive appeal is not to legal principles and Court decisions but to constituencies and agency support

Since the President lacks an item to veto, he must impound the unwanted funds to preserve his budgetary objectives and maintain control over his own executive officials.21

22

Miller suggests: "The answer is not to be deduced from the Constitution itself but is to be decided on the grounds of policy. This, in turn, means that the President can and may withhold expenditure of funds to the extent that the political milieu in which he operates permits him to do so." We are told that impoundment is "an essential instrument for protecting budgetary policy and avoiding unnecessary and costly programs" and that "Presidents exercise this power with considerable restraint and circumspection." But who is to determine what programs are unnecessary, or when the President has used circumspection in freezing funds? Surely the President alone should not, or worse still, some lower-echelon official within one of the executive agencies. Proponents of this view seem to confuse the nature of the budgetary process with the impounding issue. The distinction is that legislative determination of appropriations is a process of bargaining and persuasion; once the appropriations are passed, however, it becomes the constitutional obligation of Congress "to compel the funds to be expended." " Politics, bargaining and compromise, yes, when it comes to deciding the merits among competing requests for scarce resources; politics and bargaining, no, when the laws of the land are to be carried out. Given the President's veto and his obvious influence over the whole budgetary process, there is good reason to question the motivations for trying to obstruct the intent of the Constitution. Clearly impoundment subverts the tradition of balanced government by challenging Congress' most important instrument for making policy and for monitoring the executive branch.*

24

LEGISLATIVE REMEDIES

Clear purposeful legislation offers the best remedy for Congress to use to pry loose impounded funds and eventually to stop the Executive of its unconstitutional habit.

The Congress should use specific, mandatory language in its drafting of legislation, such as "The Congress directs" rather than "The President may." This approach, coupled with adopting specific minimum levels, below which the Chief Executive could not go, would establish expenditure ground rules clearly. For instance, in 1958, President Eisenhower "wanted to reduce the strengths of the Army Reserve and the Army National Guard, both of which had strong support

Fisher, "Funds Impounded by the President
Miller, Op. cit., 533.

Ibid, 137.

24 Huntington. Op. cit., 15.

Professor Reagan writes: "(I)f the legislature doesn't legislate vigorously, why should it bother to meet at all? So runs a commonly accepted standard for evaluating Congress' performance.... A more sensible criterion for deciding how effectively Congress has acted is this: How well has Congress monitored the bureaucracy? How active has it been in criticizing, prodding and pushing the departments and agencies? This function, I maintain, is the essential task of Congress today. If it performed well, then Congress has earned its keep, no matter what its legislative output in a given session.' M. Reagan, Monitoring the Bureaucracy: Congress Most Important Task, December 1969, at 1-2 (unpublished manuscript) (emphasis in the original).

in their local communities. Congress retaliated by providing mandatory language to maintain the strength at higher levels." "

Old fashion political pressure is another tack Congress can take. Before the 1970 elections, President Nixon withheld education funds which stimulated widespread criticism from school districts; two weeks before election day, the Administration released the money. When HEW Secretary Richardson was asked whether the upcoming elections had prompted the Administration to pry loose the funds, he replied wryly, that there was "no connection whatsoever.” “

If any remedy is to assure that programs, once funded, are carried out as mandated, Congress must strengthen and regularize its review of Executive compliance with Congressional appropriations. At present, once an appropriation is passed, Congress usually loses sight of it. There is no regularized process for following an appropriation to see that it is spent in the legislatively prescribed manner. Moreover, the Office of Management and Budget is unwilling to release to the Congress necessary information on so-called "reserved" funds." It is, therefore, apparent that for any remedy to be effective, Congress must provide for itself some means for obtaining the data necessary to determine whether to invoke that remedy. For instance, legislation passed last year requires the Administration to make prompt and full reports to Congress on its fund-freezing actions. The first report is due on February 10, 1973. Also, there is legislation in the Foreign Assistance Act of 1971 making the obligation or expenditure of funds available under the Foreign Assistance Act and the Foreign Military Sales Act contingent upon the release of certain impounded funds. The General Accounting Office, which was required to certify that the OMB had released over two billion dollars for programs administered by USDA, HEW, and HUD reported that these impounded funds had been released by the set deadline."

Your Impoundment Control Bill (S. 373) goes further, requiring the President to make comprehensive, public reports to Congress within ten days after impounding appropriated funds. Congress will thus have 60 days in which to pass a resolution agreeing to the President's action. If, during the 60 days, Congress fails to approve the President's action, the President will be required to stop the withholding of funds and to proceed to apportion them as Congress directed. In effect, the President will be able to submit a revised budget for consideration by Congress, but it still will be up to Congress to make the final decision-as it should be.

We all should admit that Congress must do a better job of examining the massive federal budgets which are sent to Capitol Hill each year. Last year, both Houses created a joint committee to recommend procedures for dealing with expenditure control and the setting of an annual appropriations ceiling. I would hope that this would lead to a creation of a Joint Congressional Committee on the Budget which would eventually be capable of drawing up a budget itself. In order to restore the Constitutional balance, Congress must recover, in addition to the power of the purse, still other powers it has delegated to the Executive branch over the last several decades. In this regard, I want to call to your attention, Mr. Chairman, the work of the Special Committee on the Termination of the National Emergency, a newly authorized bi-partisan group of which our distinguished colleague from Maryland, Senator Mathias, and I are Co-chairmen. The Special Committee, composed of four Democrats and four Republicans, is now engaged in a study of all emergency powers legislation now in force and, in particular, the question of terminating the national emergency declared by President Truman on December 16, 1950, which, after 23 years, is still in effect. The focus of the constitutional imbalance now evident in our country is largely due to the existence of extended emergency situations throughout this century, wars as well as economic depressions.

The Special Committee study has already determined that the Trading with the Enemy Act of 1917 and the Banking Act of 1933 provide the President with enormous emergency powers in time of peace as well as war to control the flow of private money within and outside the United States. Section 5(b) of the Act of October 6, 1917, as amended, remains the basis for many of the executive emergency powers now on the statute books. For instance, the Executive branch, in February of 1968, restricted transfers of capital to foreign countries by substantial U.S. investors and required repatriation by these investors of holdings

28 Fisher, "Presidential Spending Discretion and Congressional Controls."

27 Washington Post, Oct. 23, 1970.

29 Memorandum from Robert P. Mayo to Senator Sam J. Ervin, May 1969.

29 See 117 Congressional Record, Dec. 17, 1971, S21, 903 (daily ed.) and 118 Congressional Record, May 3, 1972. H4098 (daily ed.).