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The Constitutional propriety of these serious actions is unlikely to be settlei by the courts in the foreseeable future. Thus if Congress is to regain its rightful position of equality in our Constitutional scheme, it will have to do so througa its own enterprise. Help from other quarters cannot be counted on.
No weapon in Congress' arsenal is more effective for this purpose than its power of the purse—the power to cut off funds. Without action by Congress, the President cannot get money. Without money, he cannot function.
Moreover, in order to insure the implementation of its legislative programs which a recalcitrant Executive threatens to kill, the Congress must consider using whatever power the Constitution gives it to make expenditures itself.
That the Constitution vests the power of the purse exclusively in Congress is indisputable:
"All legislative powers herein granted shall be vested in a Congress of the United States ..." (Article I, Section 1).
"No money shall be drawn from the Treasury, but in consequence of appro priations made by law ..." (Article 1, Section 9).
"The Congress shall have power to lay and collect taxes ..." (Article I, Section 8).
"All bills for raising revenue shall originate in the House of Representa. tives ..." (Article 1, Section 7).
"The Congress shall have power ... to coin money ..." (Article I. Seco tion 8).
*The Congress shall have power to ... pay the debts ... of the t'nited States . .." (Article I, Section 8). Therefore Congress need not search for means by which to guarantee itself an equal voice in the government of this country. It merely needs to exercise the means which the Constitution very intentionally placed at its exclusive disposal.
In blunt terms, this means cutting off the President's money when he flas rantly violates a mandate of Congress. Any mechanism established by Congress to oversee and control actions by the Executive Branch must include this kind of sanction, for without it the President can act with impunity.
Under its present cumbersome structure and procedures, Congress lacks the capacity to apply such a sanction on a systematic basis in response to Executive Branch abuses.
What must be institutionalized is a simplified procedure which facilitates effective response by Congress to specific acts of the President.
The first step in this direction is for Congress to delegate to the Comptroller General, who should be appointed by Congress and afforded expanded authority, the job of gathering and analyzing all the information Congress needs to orersee Federal expenditures. Congress itself has neither the time nor the resources for this enormous task. If it burdens itself with this responsibility, the work will never get done and Congress will not come close to getting a bandle on the administration of the Budget. It simply has too much else to do to take on this added volume.
Second, in order to provide for swift and decisive action when necessary. Congress must also delegate the initial exercise of its power to cut off funds to an institution capable of acting with one mind, while reserving to itself authority to ratify, modify, or rescind such action by its delegate by concurrent resolution.
Centralization of the initial decision-making authority in another institution is essential if Congress is to make any system of sanctions against the Executire Branch work. The great advantage which the Presidency has always enjored over Congress is the absolute decision-making authority possessed by one man at the top. Unless Congress creates a similar system for itself, it will always be trying to fight the President with at least one hand tied behind its back.
To accomplish the reform necessary to permit Congress to exercise effective oversight and control over the expenditure of Federal funds by the Executive Branch, I have introduced the "Congressional Oversight Act of 1973.” This leg. islation establishes the following structure:
An Office of Budget and Expenditure Oversight (OBEO) is constituted within the General Accounting Office, with duties to analyze all legislative and Budget proposals submitted by the President and report to Congress thereon, evaluating the consistency of such proposals with the legislative programs of Congress;
The GAO is expressly stated to be an agency of Congress, the Comptroller General is expressly stated to be an officer of Congress, and the Comptroller General is made subject to appointment by the Congress for five year terms;
It is unlawful for the President or any officer or employee of the Executive Branch to impound funds appropriated by Congress, except when required to do so by law, without obtaining the prior approval of the Comptroller General for each proposed impoundment (beyond even this, Congress should explore its possible power under certain Constitutional provisions to write checks itself when the Executive refuses to expend funds) ;
The Comptroller General is required to disapprove a proposed impoundment if he determines it would not be consistent with the legislative programs of Congress;
Either House of Congress can itself render an impoundment unlawful by stating its disapproval thereof, and both Houses acting concurrently can render lawful an impoundment previously disapproved by the Comptroller General;
The Comptroller General, subject to any direction by Congress, is empowered to cut off the disbursement of funds from the Treasury when he determines that such funds are being expended by the President for pur
poses not consistent with the intent of Congress. With a structure of this nature, Congress will be able both to ensure sufficient expenditure of funds to serve the programs it has enacted, and to prevent the expenditure of funds for purposes it has never authorized or intended.
In either case, centralization of the preliminary decision-making in one man is an essential ingredient. As an agent and officer of Congress, the Comptroller General is well equipped to perform this assignment, subject always to overriding action by the Congress, which retains ultimate responsibility.
Only in this manner can Congress make effective use of its power of the purse to check the President when he abuses his authority or discretion.
The provisions of my bill are, of course, subject to amendment and can no doubt be improved. However, such legislation, passed over Presidential veto if necessary, would permit the Congress to act expeditiously by concurrent resolution thereafter.
The real question of restoring coequal powers to Congress is not the Constitutional question, but more fundamentally, a question of will. If Congress has the will and the independence it can restore checks and balances to our govern. ment.
Further, a thoughtful and powerful Congress would be in a position to encourage, indeed to insist in, cooperation by the Executive Branch. What is needed in our system of government is a capacity of both the Executive Branch and Congress to work together in the national interest, with a clear understanding by both of their accountability to the American people.
Failure by the Congress to act in this area can lead only to a one-sided confrontation which the Congress would lose--an outcome which would be inimical to the best interest of the Ar an people.
COMPTROLLER GENERAL OF THE UNITED STATES,
Washington, D.C., February 24, 1697. Hon. GEORGE H. FALLON Chairman, Committee on Public Works, House of Representatires.
DEAR MR. CHAIRMAN : Reference is made to letter of February 15, 1967, from you and the Chairman of the Committee on Public Works, United States Senate, raising a question of the legal authority of the Executive Branch to withhold funds authorized for expenditure by the States under the Federal-Aid highway program and financed from the revenues dedicated to the Highway Trust Fund.
At the outset we are certain you understand that any opinion expressed by us in this matter is advisory only. The General Accounting Office is responsible for seeing that appropriations made by the Congress are disbursed in accordance with the laws enacted by the Congress and that receipts are properly accounted for. The question raised in your letter, however, does not involve the validity of an obligation or expenditure or the proper accounting for receipts but involves the legal authority of the Executive Branch to impound or withhold from obligation and from expenditure funds appropriated by the Congress. Consequently, it is not within our jurisdiction to determine authoritatively whether the Executive
Branch is legally required to obligate and spend funds appropriated by the Cio. gress. In our opinion this particular question can only be resolved with any finality by the courts.
Due to the time factor involved we have not had an opportunity to obtain fron the Department of Commerce a report of the facts involved in the decisioa to withhold from obligation a part of the funds under the Federal-Aid highway program. From information appearing in news articles we understand that in line with the President's directive to all departments and agencies to cut non military spending as much as possible without harming essential programs in order to reduce inflationary pressures, the Bureau of Public Roads reduced amounts which would have otherwise been available to the States for award of contracts in fiscal year 1967 under the Federal-Aid highway program.
Section 103(e), title 23, United States Code (Federal-Aid Highway Act of 1958) provides that:
"The Secretary shall have authority to approve in whole or in part the Federal-aid primary system, the Federal-aid secondary srstem, and the Interstate System, as and when such systems or portions thereof are des ignated, or to require modifications or revisions thereof. Yo Federal-aid system or portion thereof shall be eligible for projects in which Federal funds
participate until approved by the Secretary." Section 104 (b) of title 23, requires that the Secretary of Commerce apportion the sums authorized to be appropriated among the several States.
Section 104(e) of title 23, United States Code, provides that on or before January 1 preceding the commencement of each fiscal year, the Secretary of Conmerce shall certify to each State the sums which he has apportioned thereunder to each State for such fiscal year.
Section 105 provides that as soon as practicable after the apportionments hare been made for any fiscal year, a State desiring to avail itself of the benefits of title 23, shall submit a program or programs of proposed projects to the Serretary for his approval. Section 105 further provides that the Secretary shall act upon programs submitted to him as soon as practicable after submitted and that he may approve a program in whole or in part.
Section 106 provides that as soon as practicable after a State program has been approved, the State shall submit surveys, plans, specifications and estimates of each proposed project included in an approved program. Section 106 further provides that the Secretary's approval of any project shall be deemed a contractual obligation of the Federal Government for the payment of its proportional contribution thereto.
In view of the language of section 106 we are of the opinion that unless and until the Secretary approves a project the United States will not hare incurred a contractual obligation to a State for the Federal share of such project.
We understand that the decision to reduce amounts which would otherwise be available for obligation for proposed Federal-Aid during the fiscal year 1967, applies only to projects which have not been approved and will not affect projects which have been approved by the Secretary.
The permanent provisions of law governing the Federal-Aid highway program are contained in title 23. United States Code. We find nothing in title 23 which specifically requires the Executive Branch to obligate in fiscal year 1967 all the Federal-Aid highway funds available for obligation during that fiscal sear, if it is determined not to be in the hest interest of the United States to do so, nor are we aware of such a requirement in any other law.
While among the specific powers and duties of the President set forth in Article II of the Constitution it is the duty to "take Care that the Laws be faithfulls executed," we have found nothing conclusive on the question as to whether this constitutional provision may be considered as sustaining the President's authority to withhold the obligation of appropriations or as precluding the President from asserting such authority under circumstances such as involved here. The Congress has had occasion to consider the question of the authority of the President to withhold or impound appropriated funds. See 108 Cong. Rec. 461,346, 4689-724, 6303–19. 6836-49, 103 12–81, 14832–33, 15244-45. Also, your attention is invited to the following Law Review articles:
“The Power of the President to Impound Appropriated Funds: Tith Special Reference to Grants-In-Aid to Segregated Activities, R. E. Goosetree. American University Law Review, Vol. 11. page 32, January 1962.
"Congressional Power to Require Defense Expenditures, G. W. Daris, Fordham Law Review, Vol. 33, page 39, October 1964.
“A 20th Century Emancipation Proclamation : Presidential Power Permits Withholding of Federal Funds From Segregated Institutions, Harry Kranz,
American University Law Review, Vol. 11, page 48." In connection with the with holding or impounding of appropriations, we note that a number of bills (H.R. 11441, H.R. 11541, H.R. 11682, and S. 3578, 85th Congress; and H.R. 1254 of the 86th Congress) have been introduced in the Congress which would have made it “unlawful for any officer, agent, or employee of the United States, or any department, bureau, or agency thereof to withhold or impound or otherwise prevent any moneys appropriated by the Congress from being promptly used or applied by contract or otherwise for the purpose designated in the Act appropriating the same." These bills failed of enactment.
We trust that this letter will be of some assistance to your Committee.
The same letter is being sent to the Chairman, Committee on Public Works, United States Senate. Sincerely yours,
(Signed) ELMER B. STAATS, Comptroller General of the United States.
[From the "Progressive" Magazine, March 1973]
THE NEW CONSTITUTIONAL CRISIS
(Arthur S. Miller)
Constitution.” Last October, when Congress was diebating whether the President should be given discretion to hold spending to $250 billion in the current fiscal year ending June 30, 1973, Senator Russell Long, the Louisiana Democrat who is chairman of the Finance Committee, said in an interview that he favored the Chief Executive having limited power to cut the budget even after its enactment into law. Long asserted that such authority "would only make legal what Presidents since Thomas Jefferson have done by usurpation.” He was referring to the Presidential practice of "impounding" appropriated funds—the process by which the President withholds or reduces the amount of an appropriation approved by Congress and signed into law. Saying that it was practically impossible for Congress itself to cut the budget, Long maintained that "maybe the time has come when we need a benevolent dictator, if only temporarily."
The Senator's history of impoundment is dubious—before the Nixon Presidency, impoundments mostly took place in military matters but now the cuts are deep into social and welfare programs—but his remark about the need for a “benevolent dictator" was more prescient than he probably knew. For only a few days after the November election, President Nixon, acting through OMB—the Office of Management and Budget, that little known agency of vast powers--accelerated what he had already been doing. A cut of $6 billion in "clean water" funds was announced, running the total of withheld funds to about $15 billion. The water pollution bill had been passed overwhelmingly over a Presidential veto, hut Mr. Nixon gave in only outwardly. At the first opportunity he ordered William Ruckelshaus, head of the Environment Protection Agency, to pigeonhole more than half the Congressional appropriation.
That is government by decree, by executive fiat, an arrogant exercise of power by a President who apparently believes that Congress has neither the will nor the staying power nor the institutional capability to counter impoundment and other examples of bald executive power.
In the struggle over the relative strength of the three branches of government, the judiciary is a nonstarter. Despite all the furor about "judicial legislation," the Federal judiciary is, as Alexander Hamilton said, "the least dangerous branch,” simply because it has the least power, actual and potential. Congress is another matter--the only hope for checking a rampaging Executive branch that has steadily been aggrandizing its power since the beginnings of the republic and which, starting with President Franklin Roosevelt, has become the dominant branch.
The struggle is now reaching classic proportions. Years of debate have convinced the Senate and possibly the House that stringent controls must be placed on the Presidential power to make war without Congressional authorization and on his conduct of war. So, too, with “Executive privilege," that doctrine of dubious parentage and less validity, which is invoked by the President when be wishes to withhold information from Congress or to shield his Cabinet members or administrative aides from Congressional questioning.
But it is in the area of spending powers that the battle most directly concerns the daily lives of most Americans—and where the constitutional confrontation will be resolved. Unless and until Congress, aided perhaps by favorable judicial decisions, halts what Senator Charles Mathias, Maryland Republican, once called an "informal line-item veto" by the President, that official's power will burgeon and Congress will evermore sink, to quote Mr. Nixon out of context, into the status of “a poor, pitiful, helpless giant.” Under the Constitution the President has the power to veto a bill only in its entirety. Neither the Constitution por Congress gives the President express power of impoundment of funds voted for specific purposes by Congress. This means he is doing it "informally."
Last October, Congress tacked on to the debt-ceiling bill (and passed) a requirement that it must be notified of all impoundments, but then found the term difficult to pin down. OMB, displaying the dazzling footwork of professional bureaucrats, has seized upon the informing requirement as a tacit recognition of the legality of impoundment, to the consternation of Senator Hubert Humphres, author of the requirement, who said, "There is little basis in law or in legislatire history of law for the present impoundment practice." Humphrey maintains that President Nixon is violating "the will and intent of Congress” by deliberatels thwarting priorities set by Congress.
Usually, appropriations empower the Executive to spend that amount of money in support of programs authorized by Congress, a fact that has led some political scientists to conclude that appropriations are permissive rather than mandatory. That question, however, has never been definitely litigated, although cases now in the judicial pipeline are heading toward the Supreme Court. In one, Judge William Becker of the U.S. District Court in Missouri last year held that some highway trust funds were improperly being withheld, because of mandatory statutory language. His decision, the first to invalidate an impoundment. is now pending decision on appeal before the Eighth Circuit Court of Appeals. Whatever that court decides, the case will surely wind up before the Supreme Court. Significantly, twenty-two Senators, led by Sam Ervin and including most of the chairmen of the standing committees of the Senate, joined Ralph Nader in filing a "friend of the court" brief in the case, urging that Becker's decision be affirmed.
Bu tthe Missouri case may not be the real constitutional showdown on Presi. dential power. Judge Becker's decision was based on statutory, not constitutional, interpretation. A better case is now before a Federal court in Florida, in which Florida is contesting Mr. Nixon's impoundment of funds for a barge canal. The preliminary legal papers indicate that the question of the President's constitutional power to impound is being directly challenged.
Little help in resolving the impoundment question can be gleaned from the spare prose of the Constitution. Article I gives Congress the power to appropriate and the President, under Article II, must take care that the laws are faithfully executed. That, to some, settles the matter in favor of Congress—but in fact it merely restates the question. For Congress has been anything but precise in its appropriations language, and it has been lax in allowing past impoundments to go unchallenged. It is not only Senator Long, but other members of Congress as well, who have informally conceded a power of Presidential impoundment.
The Supreme Court could change the picture-in wha tway is unpredictable. given the hard core of Nixon appointees there--and Congress has some means of retaliation, such as withholding appropriation for the Presidents pet projects.
OMB relies on three vaguely worded statutes of a general nature as the legal basis of impoundments, plus the view that appropirations "empower” rather than "mandate expenditures: the Anti-Deficiency Acts of 1905 and 1906, the Omnibus Appropriaton Act of 1950, and the Employment Act of 1946. That simple is not enough. The first two statutes merely allow establishment of reserves to effect savings and to provide for contingencies. To find in the turgid legislative language authority for impoundment takes a mental lear that only Executire branch lawyers have been able to make, lawyers who act not as professionals but as apparatchiks.