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basis, impounded funds in foreign and domestic programs in efforts to control inflation.
We have, then, an established Presidential practice of some thirty years' duration resting primarily upon the President's authority as Chief Executive In the Pocket Veto Case, 279 U.S. 655, 690 (1929), a unanimous Supreme Court quoted with approval the statement that:
"[A] practice of at least twenty years' duration on the part of the executive department, acquiesced in by the legislative department, while not absolutely binding on the judicial department, is entitled to great regard in determining the true construction of a constitutional provision the phraseology of which is in any respect of doubtful meaning,'...” quoting
from State v. South Norwalk, 77 Conn. 257, 264 (1904). Numerous Supreme Court decisions recognize that the sanction of history goes far to establish the legitimacy of a practice that might have been questioned as an original matter. See, e.g., United States v. Midwest Oil Co., 236 U.S. 459, 472 473 (1915) Of course, cases are legion which accord great weight to an established Executive interpretation of an ambiguous statute. See, e.g., Boesch v. U dall, 373 U.S. 472, 483 (1963). But as Justice Frankfurter observed in Inland Waterways Corp. v. Young, 309 U.S. 517, 524-525 (1940), (e)ven constitutional powers, when the text is doubtful, may be established by usage." The doctrine illustrates the essential truth of Holmes' well-known dictum-"A page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).
Article II vests "executive Power" in the President. And Congress may not, by the aggregate effect of its enactments, deprive him of substantial discretion to refrain from spending, where restraint is necessary to prevent ruinous inflation. I described in my prepared statement the functional deficiencies of the Congress in adequately checking inflationary pressures. Given these intractable realities, and reading the Constitution as a living document—not a suicide pact—the President's "executive Power" must be deemed to encompass substantial authority to impound in order to check inflation. For a general discussion of the scope of the President's "executive Power," see Question 7.
It is generally conceded that the President has substantial authority to im. pound funds in the areas of defense and foreign relations. See Question 1. It must be recognized, moreover, that galloping domestic inflation may impinge significantly upon the President's responsibilities as Commander-in-Chief, and as the Nation's representative in foreign relations. Domestic inflation dilutes the effectiveness of the defense dollar, and aggravates a host of difficult and interrelated foreign problems, such as our balance of payments. This is not to argue that the President's authority to impound domestic program money flows directly from his constitutional powers in the military and foreign affairs areas. It is to suggest, however, that these powers may not be properly viewed in isolation. Their exercise is profoundly affected by domestic inflation, and they therefore lend support to his constitutional authority to alleviate inflation through impounding money for domestic programs. Mindful of John Marshall's admonition--"We must never forget that it is a constitution we are expounding,” McCulloch v. Maryland, 4 Wheat. 316, 407 (1819)—the Supreme Court has repeatedly reaffirmed the principle that constitutionally granted powers must be read with reference to the overall intention of the Framers and the practical needs of government. See, e.g., Katzenbach v. McClung, 379 U.S. 294 (1964); Wickard v. Filburn, 317 U.S. 111 (1942); Currin v. Wallace, 306 U.S. 1 (1939).
9. Question: Does the Department of Justice maintain that the President's "budgetary duities” derive from the Constitution (page 661 of the transcript)! If so, from what provision of the Constitution? If not, then they are statutory.
Answer: Section 1 of Article II provides that “the executive Power shall be vested in a President of the United States of America." This provision is not a mere summary description of the Office of the President, nor are the subse quent grants of power in sections 2 and 3 an exhaustive delineation of the scope of the powers of the President. Rather, the provision constitutes a positive grant of comprehensive executive powers.
Four years after the ratification of the Constitution, Alexander Hamilton interpreted the executive power clause as a grant of all the executive powers of which the Government is capable :
It would not consist with the rules of sound construction, to consider this enumeration of particular authorities (in the succeeding sections of Article II] as derogating from the more comprehensive grant in the general
clause, further than as it may be coupled with express restrictions or limitations. . . . The difficulty of a complete enumeration of all the cases of executive authority, would naturally dictate the use of general terms, and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of expression employed in the constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the legislative powers of the government, the expressions are, “All legislative powers herein granted shall be vested in a congress of the United States." In that which grants the executive power, the expressions are, “The erecutive power shall be vested in a President of the United States."
The enumeration ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government.
The general doctrine of our Constitution then is, that the executive power of the nation is vested in the President; subject only to the erecptions and qualifications, which are expressed in the instrument. 7 Works of Alexander
Hamilton, 76. 80–81 (J. C. Hamilton ed. 1851) (Emphasis as in original). Although, as I have stated above, impounding actions usually present nonjusticiable issues, Hamilton's broad interpretation of the executive power clause has been confirmed by the Supreme Court in other contexts on several occasions. In Myers v. United States, 272 U.S. 52, 118 (1926), Chief Justice Taft, speaking for the Court, explicitly adopted Hamilton's construction of Article II :
"The executive power was given in general terms, strengthened by specific terms where emphasis was regarded as appropriate, and was limited by di
rect expressions where limitation was needed. And, in In re Neagle, 135 U.S. 1 (1890), the Supreme Court held that the Presi
dent's duty to see that the laws are faithfully executed is not limited "to the en13 forcement of acts of Congress or of treaties of the United States according to
their express terms,” but includes “the rights, duties and obligations growing out of the Constitution itself, our international relations and all the protection implied in the nature of the Government under the Constitution.” 135 U.S. at 64. See also United States v. Midwest Oil Co., 236 U.S. 459 (1915); In re Debs, 158 U.S. 564 (1895).
As head of the Executive branch, the President has the constitutional obligation to supervise the operations of that branch. This responsibility necessarily includes the duty to plan expenditures. The source of the President's power to act in this area is derived not only from the executive power clause, but also from the clause in Article I, section 9 providing that:
"No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by law; and a regular Statement and Account of the Receipts and Expenditures of all Public Money shall be published from time
to time." Congress appropriates federal funds not to particular beneficiaries of federal programs, but for the benefit of broad classes of persons. Because only the Executive branch can draw money from the Treasury and conduct an accounting, this provision of the Constitution assumes that the expenditure of appropriations is essentially an executive function. See Corwin, The President, Ofice and Powers, 1787-1957, 127-128 (1957).
As indicated in question 4, the early appropriations acts contained only general categories, and, by necessary implication, left to the President's discretion the determination of what amounts, if any, should be spent, and for what purposes. Thus, the actions of the early Congresses confirm my position as to the budgetary responsibilities of the President under the Constitution.
Just as Congress has implied powers (MoCulloch v. Maryland, 4 Wheat. 316 (1819)), so does the President have implicit authority-under the executive power clause—in carrying out his constitutional obligations. Impounding funds is one of the most effective means that the President has to maintain fiscal control and to coordinate fiscal policies. Presidential fiscal authority could be rendered largely ineffective if the President were unable in some manner to control expenditures. Essentially, this concept of "executive Power"-overall duty to run the government responsibly and efficiently-was well expressed by veteran Congressman Carl Perkins, Chairman of the House Education and Labor Committeen
The President, if he directs the Bureau of the Budget to withhold funds from any governmental agency, we do not touch any constitutional prerogative of the President to take such action. We do not have the authority and I do not know in my judgment how we could get to that. The President in my judgment would not be able to operate an efficient form of government
if we tried to take this power away from him. 114 Cong. Rec. 29481. 7(a). Question: If the President's budgetary duties are statutory, then is it not within the power of Congress to add to them in any way deemed desirable!
Answer: As demonstrated in the previous answer, the President's budgetary duties derive substantially from the Constitution. To the extent that the duties are statutory, they are, of course, subject to legislative amendment.
8. Question: Where in the Constitution is it stated that the President is the "sole organ of the nation in the conduct of its foreign affairs?"
Answer: Certainly, the Constitution itself does not contain this language. It is, however, the language of John Marshall, later Chief Justice, during a debate in the House of Representatives in 1800. 10 Annals of Cong. 613. It is cited with approval by Justice Sutherland in United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936), and in Justice Harlan's dissenting opinion (joined by Chief Justice Burger and Justice Blackmun) in New York Times Co. v. United States, 403 U.S. 713, 756 (1971). See question 1.
8(a). Question: Does Congress not have express power, under Article I of the Constitution, to legislate in the areas of foreign commerce and also in declaring war and making rules for the armed services?
Answer: Yes. See question 1.
8(b). Question: Does not that express power to make rules for the armed sere ices necessarily include the President a8 Commander-in-Chief! Is not the express power augmented by the "necessary and proper" clause!
Answer: Insofar as Congressional rulemaking for the armed services does not infringe upon the President's power as Commander-in-Chief, the rules enacted by the Congress would apply to the President. However, I do not view this rule making power as granting the Congress authority to compel the full expenditure of defense appropriations. History strongly supports that conclusion. See question 1. The "necessary and proper" clause enables Congress to implement the powers granted to it under the military rulemaking provision. See question 3.
8(c) Question: At the very least, is not the power over the conduct of foreign relations, as set out in the Constitution and the cases, a shared power between the executive and legislative branches of the Federal Government?
Answer: Yes. See question 1.
9. Question: Cite the express language in the Antideficiency Act that gives the power to impound, as distinguished from the power to allocate reserves to prevent deficiencies.
Answer: The primary purpose of the Antideficiency Act (31 U.S.C. 665) is, as you suggest, to prevent deficiencies. However, certain language in section 665 (c) (1) and (2) does permit the Office of Management and Budget to take steps to ensure efficient use of funds, and to effect savings under certain circumstances, action which would not necessarily be required to prevent deficiencies.
[A]ll appropriations or funds not limited to a definite period of time, and all authorizations to create obligations by contract in advance of appropriations, shall be so apportioned as to achieve the most effective and economical use thereof.
In apportioning any appropriation, reserves may be established to provide for contingencies, or to effect savings whenver savings are made possible by or through changes in requirements, greater efficiency of operations, or other developments subsequent to the date on the which such appropriation was
made available. 10. Question: On page 676 of the transcript, Senator Muskie asked: “Could the President or could the Administrator, in your judgment, change Administration policy and allow the sums that were not allotted prior to January 18t (pursuant to the Water Pollution Bill]?” You answered: "I am not prepared to answer that." Having had the time to study the matter, please supply the Committee with the Department's answer.
Answer: Section 205 (a) of the Federal Water Pollution Control Act amendments of 1972 provides in pertinent part that
Sums authorized to be appropriated pursuant to section 207 for each fiscal year beginning after June 30, 1972, shall be allotted by the Administrator not later than the January 1st immediately preceding the beginning of the fiscal year for which authorized, except that the allotment for fiscal year 1973 shall be made not later then 30 days after the date of enactment of the Fed
eral Water Pollution Control Act Amendments of 1972. The evident purpose of these time limits is to ensure that the states and localities will know as soon as practicable how much money is potentially available for their projects in particular years, thereby facilitating advance planning. However, the legislative history of the statute makes it quite clear, in my view, that not all the sums authorized by section 207 need be allotted. See footnote 22 of my statement before your Subcommittee. While a literal reading of the quoted language might suggest that no funds may be allotted after the statutory time limits, I do not believe that such a reading would be truly reflective of Congressional intention. I interpret the quoted statutory language to mean that the President's best judgment under circumstances prevailing at the time as to the amounts that may be prudently allotted should be exercised by the statutory time limits. However, changed circumstances following those dates might justify subsequent allotment of additional funds within and for the fiscal years specified, in the President's discretion.
11. Question: On page 686 of the transcript, you asserted that the President has ponoer to "cut programs" 100 percent. What is the source of Executive power to terminate programs authorized by Congress and signed into law by the President?
Answer: In my view, the President is authorized substantially to reduce spending for a wide variety of federal programs, and, in some circumstances, he may cut spending 100 percent of particular programs. However, he is, of course, not authorized to make spending cuts arbitrarily.
As noted in my prepared statement, the typical federal spending program statute "authorizes” expenditures by the executive branch, and implementing appropriation acts merely establish a spending ceiling, not a floor. Literally read, therefore, the President could spend as little as he deems appropriate under such statutes, or nothing at all.
Impounding of funds for a particular program is justified in many circumtances where spending may have the effect of violating other statutory provisions. The debt ceiling is a good example of this, and it is discussed in my statement before your Subcommittee.
More fundamentally, substantial authority to impound funds for particular programs flows from the "executive Power" conferred upon the President by Article II. See question 7. This power plainly includes a duty to promote efficiency in government, and to prevent waste. In the past 40 years, Congress has enacted hundreds of spending programs. Once established, these programs become entrenched in the federal bureaucracy and develop powerful political relationships in the Congress and among special interest groups. In short, they acquire a self-perpetuating momentum, regardless of their logical relationships to other programs, and to changing national needs. In these circumstances, the President is authorized, for example, to merge essentially duplicative programs and to eliminate programs which are no longer needed.
But it is impossible to answer this question fully in the abstract. Significant impounding actions must be evaluated in their overall contexts.
11(a). Question: Does not your position give the President an item-veto power long after he has either signed a bill or a bill has been enacted over his veto? If so, where in the Constitution does the President get an item-veto power?
Answer: My position does not give the President an item-veto power, a power he does not possess under the Constitution. If the President had an item-veto power, he could effectively abolish particular programs for no reason at allsubject to the power of Congress to override his action. Impounding actions may not be arbitrary.
12. Question: You stated, in answer to a question from Senator Percy, that "we think [Rehnquist's position on impoundment] was erroneou8." Please indicate in detail how and why you believe Rehnquist to be erroneou8—making specific reference to his memorandum in your answer.
Answer: The substance of Mr. Rehnquist's rather lengthy memorandum of December 1, 1969, concerning the federal impacted area school subsidy program
is that Congress can compel spending by the Executive in the domestic area, if it clearly manifests an intention to do so. I do not believe that further extended reference to the memorandum here would be productive. My disagreement with Mr. Rehnquist's position rests primarily upon four grounds.
First, the memorandum does not deal at all with the historic practice of Presidents in impounding funds, particularly for the purpose of controlling inflation In my judgment, the warrant of historic practice is perhaps the strongest support for my position. See questions 4 and 6.
Second, although the memorandum acknowledges some Presidential authority to impound in the defense and foreign relations areas, it takes an unduly narrow view of that authority, and does not adequately take into account the relationships between those areas and the domestic area. See question 6.
Third, the Rehnquist position appears to rely substantially upon the Kendall case. As demonstrated in my statement before your Subcommittee, that case has very little bearing upon the current impounding issues.
Fourth, in my view, the Rehnquist memorandum adopts far too restrictive a view of the Executive power conferred by Article II. Concededly, it is difficult to argue against such abstract statements in the memorandum as
It may be argued that the spending of money is inherently an executive function, but the execution of any law is, by definition, an executive function, and it seems an anomalous proposition that because the Executive branch is
bound to execute the laws, it is free to decline to execute them. I believe, however, that the matter is far more complex than those statements suggest, as indicated by my previous answers. Under the Rehnquist position, for example, it would seem that the President's responsibilities with respect to managing spending could be made almost entirely clerical. As explained more fully in questions 6 and 7, I strongly disagree with that view.
12(a). Question: If you believe Mr. Rehnquist's memorandum was erroneous, what steps have you taken to rectify it?
Answer: My testimony before your Subcommittee expresses the Department of Justice position on this matter.
13. Question: You state that, in the judgment of the Department, the Presi. dent's power to impound derives in part from his duty to take care that the lara are faithfully executed. State the criteria by which choices are made between allegedly inconstant (sic) laws of the Congress. For example, why is the debtceiling limitation chosen over specific appropriations!
Answer: In situations where impounding action is taken in order to harmonise inconsistent statutes, the governing criterion, of course, is the intention of the Congress. The problem is frequently made difficult by the fact that the conflicting laws were enacted without reference to each other, and Congress has not made its intention clear. In those circumstances, the President is bound to harmonize the conflicting purposes of the statutes on the basis of their language, legislative histories, and indirect indications of probable Congressional intent. The process is illustrated by an opinion rendered by Attorney General Mitchell to the Chair man of the Cost of Living Council concerning the relationship between the Economic Stabilization Act and the 1971 military pay raise statute. A copy of that opinion is attached.
The debt ceiling imposes an overall spending limitation on the federal government. As such, it governs over specific spending authorizations for hundreds of separate spending programs, except to the extent that a particular program statute or implementing appropriation act specifically might provide that mones for that program may be spent without regard to the debt ceiling.
14. Question: You stated that the President could lawfully impound funds appropriated for the independent regulatory commissions. Plcase state the legal basis for that assertion. In your answer, please inform the Committee as to my Humphrey's Executor v. United States, and Wiener v. United States do not state a judicial position contrary to yours. Also indicate the extent to which the President can control decisions of the independent regulatory commissions.
Answer: The special status of the "independent regulatory commissions" was recognized by the Supreme Court in Humphrey's Executor v. United States, 296 U.S. 602 (1935), and Wiener v. United States, 357 U.S. 349 (1958). These cases stand for the proposition that the President cannot remove a member of an inde pendent commission before his term expires simply because he prefers a man of