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A decision by the White House in early 1971 to impose a freeze on the Model Cities program was interpreted in the press as a "hostage" tactic—an attempt by the Administration to build support for its revenue sharing proposal. Letters were about to be sent to 147 mayors, informing them that funds would remain available up to the end of the calendar year but that any additional funds would have to come from the special revenue sharing plan for urban development. It was also reported that similar letters would be sent later to announce a year-end freeze on such programs as urban renewal and sewer and water grants. Repre sentatives of the National League of Cities and the Conference of Mayors lodged strong protests and the letters were never sent out. (67) The Housing subcommittee of the Senate Banking, Housing, and Urban Affairs Committee held hearings in March, giving mayors, private organizations, and representatives of the housing industry an opportunity to state their needs for Federal funds. (69)

In January 1972, newspaper reports disclosed that the Nixon Administration was withholding $202 million in funds for the program against hunger. That represented approximately 10 percent of the $2.2 billion appropriated for food stamps. It also represented the amount that Congress had added to the President's budget request. Administration officials contended that the extra funds were not actually being impounded; it was rather a matter in which the funds were not needed. However, after vigorous criticism from Members of Congress, governors, and local officials, the full amount was released. (69)

9. Committee Pressure. The House Committee on Appropriations, in reporting out the agriculture bill on June 18, 1971, noted that its agriculture subcommittee “has provided funds for rural water systems, for sewer and waste disposal in cities with a population under 5500, and for rural electrification. Unfortunately, the Office of Management and Budget froze $56 million in funds for grants which, under our subcommitiee's sponsorship, the Congress provided to meet the tremendous need for rural water and waste disposal systems." With regard to funds impounded for the rural environmental assistance program, the (nmittee said it "strongly condemns the failure to administer the full $195,3477, (NO) called for by the Congress for 1971." (70)

Committee pressure was also brought to bear against OMB in 1971, this time involving public works money. Congress had added to the President's budget 18 new planning starts and 31 new construction starts for the Corps of Engineers. OMB, without exception, impounded all of the add-on money. OMB officials were subsequently requested to come before the public works subcommittee of House Appropriations to justify their action. The Subcommittee reviewed each of the affected projects, pointing out the favorable cost-benefit ratios and asking on what basis the projects were being frozen. (71) When the public works appropriation bill was reported out on July 26, 1971, the committee report argued that the impounding of $63.4 million had resulted in an estimated increase in project costs of $73 million and an estimated loss of annual benefits of $109 million. (72) OMB eventually released most of the money, in effect deferring the projects for a full fiscal year. (73)

The committee themselves are pressured by Members who introduce simple resolutions calling for the release of impounded funds. While it is true that these resolutions are not legally binding and merely express the sense of the Senate or the House, they serve to make the committees and the Administration aware of the intensity of legislative feelings.

During the 92d Congress, fire simple resolutions have been introduced in the Senate for the purpose of releasing funds impounded for public works (S. Res. 58), health and environmental protection (S. Res. 116 and S. Res. 134), urban programs (S. Res. 131), and medical training (S. Res. 135). These resolutions were referred, respectively, to the Appropriations, Government Operations (2), Banking, Housing and Urban Affairs, and Labor and Public Welfare committees. Four other simple resolutions were introduced to release funds for the food stamp program (S. Res. 181), Farmers Home Administration (S. Res. 2661. and the rural electrification program (S. Res. 232 and S. Res. 271). These were referred to the Committee on Igriculture and Forestry.

A total of 24 simple resolutions hare been introduced in the House during the 92Congress to free impounded money. In a series of seven resolutions, Rep. William L. Hungate attracted 80 cosponsors for a resolution directing the President to immediately release fiscal 1971 funds for public works, except for projects being reconsidered or delayed for environmental reasons. (7+) Eight resolutions, with a total of 60 names, were directed at funds that had been impounded for water and waste facility grants and for the farm operating loan

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program. (75) Vine resolutions, with 50 names, sought the release of funds for the rural electrification program. (76) All of these resolutions were referred to the Appropriations Committee.

10. Reporting. Members of Congress are often unaware that the Office of Management and Budget has decided to impound funds. At some point, however, they learn through an affected agency in their district or State that funds have not been released for a particular program or project. To exercise closer control and scrutiny over these impoundment decisions, various proposals have been put forth to require prompt reporting by the President.

On November 30, 1971, Senator Hubert H. Humphrey was successful in adding an amendment to the Revenue Act of 1971, requiring that whenever any funds are appropriated and then partially or completely impounded, the President "shall promptly transmit to the Congress and to the Comptroller General of the United States a report containing the following information: (1) the amount of the funds impounded; (2) the date on which the funds were ordered to be impounded; (3) the date the funds were impounded; (4) any department or establishment of the Government to which such impounded funds would have been available for obligation except for such impoundment; (5) the period of time during which the funds are to be impounded; (6) the reasons for the impoundment; and (7) to the maximum extent practicable, the estimated fiscal, economic, and budgetary effect of the impoundment." These reports would also be printed in the first issue of the Federal Register published after the reports were transmitted to Congress. The Humphrey amendment was adopted by a vote of 18 to 18. (77) However, it was not considered on its merits in conference committee because of questions raised as to its germaneless under House rules. (78).

11. Legislative l’eto. A number of bills have been introduced in the 92d Congress to couple a reporting requirement with an opportunity for Congress to orerride a President's decision to impound funds. Senator Sam J. Ervin, Jr. introduced a bill on June 9, 1971, to require the President to notify Congress within 10 days of an impoundment action. Congress would then have 60 days to pass a joint resolution disapproving the impoundment. (79) Since a joint resolution must be submitted to the President, it would be subject to his veto.

Senator Ervin introduced another bill on September 27, 1971, that is stronger in two respects. The President would have to cease the impounding of funds within 60 days unless Congress ratified the specific impoundment. Thus, the burden would be on the President to obtain legislative support rather than on Congress to disapprove the President's action. Second, the device used to ratify the impoundment would be a concurrent resolution, which is not submitted to the President and therefore not susceptible to his veto. (80)

od slightìy different bill, introduced on March 15, 1972 by Rep. Richard T. Hanna, also provides for regular reporting and a legislative veto. One novel feature of the Hanna bill is that the resolution of disapproval is a simple resolution, passed by either house of Congress. Moreover, the bill “declares and affirms the authority of the President, in the proper exercise of his functions, to impound or authorize the impounding of funds which have been appropriated for a specific purpose or project when he determines that such action is necessary or desirable in the national interest, subject to the provisions of this Act.” (81) The Hanna bill, in short, specifically sets out to delegate impoundment authority to the President and then makes that authority contingent upon a legislative veto. The objective is to try to avoid a situation where the President claims that his authority to impound is not delegated by Congress but rather derives from inherent or implied constitutional powers. By signing the Hanna bill, he would presumably acknowledge that Congress had given him the authority and can therefore take it away.

-12. Study Committees. On March 30, 1971, Rep. Charles E. Bennett introduced a concurrent resolution to establish a Joint Committee on Impoundment of Funds, consisting of five members from each house. The purpose of the committee would be to conduct “a continuing comprehensive study and review of the President's constitutional power to terminate authorized Federal projects for trhich appropriations have been made or to withhold funds for same and to report to the Congress its findings in a final report before the close of the Ninety-second Congress.” The committee would be authorized to hold hearings, employ staff, rely on the services of the General Accounting Office or any department or agency in the executive branch, and borrow, with the consent of any other committee of the Congress, such staff facilities and services as the chairman of the joint committee determines is necessary and appropriate. (82)

13. Disapproving Administration Proposals. The strongest tool available to Congress is quite likely the power to reject programs and projects desired by the President. For example, if the President decides to withhold funds from certain domestic public works projects, Congress can cut from the foreign assistance act funds that are earmarked for public works projects abroad. This, of course, is a straightforward power play: hitting the President where it hurts the most. relying on a traditional "quid pro quo" for political accommodation. Senator Ellender had lent his support to this tactic:(83)

"A third proposal [to force the release of impounded money) is for the men. bers of Congress, individually and as a body, to say “no" to other policies whose approval is being sought by the President. It may be that in the long run this will prove the most effective. It was an important element in the rejection by the House of Representatives and the Senate of the funding request to carry on development of the Super Sonic Transport. I suspect we are going to see more and more of this thinking in the Congress in the days ahead if changa are not made. Although in the past I have tried to judge each issue on its meriis I myself am being brought around slowly to this point of view, particularly in areas where it seems the welfare of foreigners is being given priority over that of our own people."

This approach was used by the Senate when it amended the Foreign Assistance Act of 1971. The obligation or expenditure of funds available under the Fortini Assistance Act and the Foreign Military Sales Act was made contingent up the release of certain impounded funds for domestic agencies. The Comptroller General would have to certify that the Administration had released, by April 30. 1972. a little over $2 billion in fiscal 1971 funds that had been withheld fruin programs administered by the Department of Agriculture, the Department of Health, Education, and Welfare, and the Department of Housing and Irlan Development. (81) The GAO subsequently reported that these funds, as of the deadline, had been released.(85)

REFERENCES

1. H. Rept. No, 1830, 85th ('ong., 2d Sess., pp. 3.7436 (May 28, 19.78). 2. 72 Stat. 715 (Aug. 21, 1958). 3. For example, 73 Stat. 367 (Aug. 18, 1959) and 74 Stat. 310 (July 7, 1960). 4. 85 Stat. 280 (Aug. 10, 1971). 5. H. Rept. No. 92–305, 92d Cong., 1st Sess., p. 20 (June 23, 1971). 6. 96 Cong. Rec. 7544 (May 23, 1950). 7. 96 Cong. Rec. 11022 (July 26, 1950). 8. 64 Stat. 420 (Aug. 8, 1950). 9. 64 Stat. 758 (Sept. 6, 1950). 10. Public Papers of the Presidents, 1950, p. 616. 11. H. Bradford Westerfield, Foreign Policy and Party Politics: Pearl Harbor

to korea (New Haven : Yale University Press, 1955), p. 73. 12. H.R. 8996, 85th Cong., 1st Sess. (July 31, 1957). Introduced simultaneously

as S. 2674. 13. 103 Cong. Rec. A6319-6321 (Aug. 5, 19.57). 14. 71 Stat. 401, 405, 408 (Aug. 21, 1957). 15. 72 Stat. 494, 49. (Aug. 4, 1958). 16. 10 U.S.C. $ 101, itens 28 and 29 (1970). 17. 112 Cong. Rec. 13057 (June 14, 1966). 18. Ibid. 19. 80 Stat. 275 (July 13, 1966). 20. H. Rept. No. 1406, 87th Cong., 20 Sess., pp. 1, 9 (1962). 21. 108 Cong. Rec. 46.94 (March 21, 1962). 22. Ibid., p. 4720. 23. Public Papers of the Presidents, 1970, p. 22. 24. Memorandum of December 1, 1969; 116 Cong. Rec. 343–345 (Jan. 20. 1970),

The last two qualifications are covered in footnotes 5 and 8 of the memin

randum. 2.5. 116 Cong. Rec. 347 (Jan. 20, 1970). 26. 116 Cong. Rec. 1487 (Jan. 28, 1970). 27. 83 Stat. 193 (Nov. 14, 1969). 28. 116 Cong. Rec. 4004 (Feb. 19, 1970). 29. Enacted into law. 82 Stat. 1094. 30. 114 Cong. Rec. 29014 (Oct. 1, 1968). 31. 114 Cong. Rec. 29159 (Oct. 2, 1968). 32. 114 Cong. Rec. 29481 (Oct. 3, 1968).

33. Public Papers of the Presidents, 1970, p. 514.
34. 116 Cong. Rec. 18761 (June 8, 1970) [from the conference report, H. Rept.

No. 91–1167, 91st Cong., 2d Sess.).
35. Stat. 336 (June 30, 1970).
36. H. Rept. No. 91-1167, 91st Cong., 2d Sess., p. 25 (June 9, 1970).
37. 116 Cong. Rec. 22273 (June 30, 1970).
38. Ibid., at 22268.
39. Ibid.
10. Ibid.
41. Ibid., at 22269.
42. Ibid., at 22267.
43. Allocation of 1971 Appropriations to Education, hearing before the House

Committee on Education and Labor, 91st Cong., 20 Sess., pp. 7–8 (Oct. 12,

1970).
Hi Public Works for Water and Power Development and Atomic Energy Com-
mission Appropriations (Part 6), hearings before the House Committee on

Appropriations, 92d Cong., 1st Sess., p. 22 (1971).
45. 31 C.S.C. $ 665(C) (1970).

16. 96 Cong. Rec. 6812 (May 10, 1950).
Dupa 17. Ibid., at 11547-11701 (Aug. 2-3, 1950).

48. 64 Stat. 768, sec. 1214 (Sept. 6, 1950).
49. 118 Cong. Rec. S3165 (daily ed., March 6, 1972).
50. Ibid., at $3278 (March 3, 1972).
51. Ibid., at S316.), S359.5 (March 6, 1972).
52. Ibid., at S3559-3.591.
33. Ibid., at S3398-3603.
54. H. Rept. No. 92–910, 92d ('ong., 20 Sess. (March 9, 1972); 86 Stat, 63

(arch 15, 1972).
3). Section 304 of H.R. 14057, 93d Cong., 2d Sess.
6. The Washington] Evening Star, Ipril 6, 1971, 1). A5.
17. 117 Cong. Rec. S.5429 (April 22. 1971).

Verorandum of December 1, 1969; 116 Cong. Rec. 345 (Jan. 20, 1970).
54. 117 Cong. Rec. S10:2+10928 (daily ed., July 14, 1971).
60. 329 F. Supp. 672 (July 30, 1971),
61. Reprinted in Erecutive Impowment of appropriated Funds, hearings before

the Senate Committee on the Judiciary, 92d Cong., 1st Sess., p. 584 (1971). 62. H.J. Res. 577, 92d Cong., 1st Sess. Identical bills introduced during the

20 Congress include H.J. Res. 350, 581, 384, 394, 508, 603, 60.), 610, 611,

021, 023, 624, 626, and 660.
63. 117 Cong. Rec. E:3:33 (daily ed., April 27, 1971).

64. 117 Cong. Rec. E 1679–4680 (May 19, 1971).
10. 65. Public Papers of the President, 1967, pp. 219. 357.

66. Ilashington Post, Oct. 23, 1970, A6. For samples of criticism from local sehool

officials, see letters placed in the Record by Senator Walter F, Mondale, 116 Cong. Rec. S18174-18176 (daily ed., Oct. 14, 1970). 67. The New York Times, Feb. 19, 1971. 20:7 and Feb. 28, 1971, 1:1. 68. Withholding of Funds for Housing and Urban Derelopment Programs, Fis

cal Year 1971, hearings before the Senate Committee on Banking, Housing, and

Urban Affairs, 92d Cong., 1st Sess. (1971). 69. The New York Times, Jan, 122, 1972. 1:3; The ITashington Post, Jan. 13, 1972,

A22; The New York Times, Jan, 17, 1972. 1:5. 70. H. Rept. No. 92–289.920 Cong., 1st Sess, pp. 3. 51. 71. Public Works for Water and Power Development and Atomic Energy Com

mission Appropriations (Part 6), hearings before the House Committee on Appropriations, 92d (ong., 1st Sess. (1971). 72. H. Rept. No. 92-381, 92d Cong., 1st Sess., j). 3 (1971). 13. 117 Cong. Rec. EX308 ( daily ed., July 27. 1971), 74. H. Res. 305, 359, 360, 382, 383, 439, and 440. 15. H. Res. 858. 859. 860, 871. SS1. 882, 301, and 942. 76. H. Res. 919. 932, 931,935, 936, 944, 962, 964, and 966. 77. 117 Cong. Rec. S18485 (daily ed., Nov. 13, 1971). Senator Humphrey had ear

lier introduced the substance of his amendment in bill form: S. 2604, 92d Cong., 1st Sess. (Sept. 29, 1971). 78. H. Rept. No. 92-708, 920 Cong., 1st Sess. p. 39 (1971). 79. S. 2027. 920 Cong.. 1st Sess. Identical bills introduced in the 924 Congress

include H.R. 9155 (Thaddeus J. Dulski). Senator Ervin, as chairman of the Subcommittee on Sepa ration of Powers, had held three days of hearings on

impounded funds: Executive Impoundment of Appropriated Funds, hearings before the Senate Committee on the Judiciary, 92d Cong., 1st Sess. (March

23-25, 1971). 80. S. 2581, 92d Cong., 1st Sess. Identical bills introduced in the 92d Congress

include H.R. 12641, 12882, 12883, 12884, 13100, 13101, 13379, 13636, and 14:30 (all by William R. Anderson), H.R. 13146 (Dominick V. Daniels), and H.R.

13924 (William J. Randall). 81. H.R. 13813, 92d Cong., 2d Sess. Identical bills introduced in the 92d Congress

include H.R. 13861 (Henry B. Gonzalez). H.R. 14057, a four-part bill introduced by Marvin L. Esch, also relies on a simple resolution of disapproval but does not contain the clause affirming the President's authority to impound. 82. H. Con. Res. 244, 92d Cong., 1st Sess. Identical bills introduced in the 901

Congress include S. Con. Res. 13 (Sam J. Ervin, Jr.), H. Con. Res. 20 (W. R. Hull, Jr.), H. Con. Res. 26.5 (Wendall Wyatt), and H. Con. Res. 284, 285, 28,

and 295 (all by Rep. Bennett). 83. 117 Cong. Rec. S5429 (daily ed., April 22, 1971). Senator Frank Church has

also suggested that Congress "can deny funds requested by the President for programs he may strongly favor, and, in this manner, bring pressure on the Chief Executive to implement congressional intent in other areas.” (Frank Church, “Impoundment of Appropriated Funds: The Decline of Congressional

Control Over Executive Discretion." 22 Stanford L. Rev. 1240, 1252 (1970). 84. 86 Stat. 32, sec. 658 : see 117 Cong. Rec. $21903 (daily ed., Dec. 17, 1971). 85. 118 Cong. Rec. H4098 (daily ed., May 3, 1972).

OPINION OF THE ATTORNEY GENERAL OF THE UNITED STATES FEDERAL HIGHWAY ACT OF 1956—POWER OF PRESIDENT TO IMPOUND FUNDS Appropriation acts are of a fiscal and permissive nature. They authorize but jo

not compel the executive branch to expend funds. Under the Federal-Aid Higlway Act of 1956 (June 29, 19.36. C. 162. 70 Stat. 375

as amended, 23 U.S.C. 101 note), the States have no inchoate right to funds apportioned to them prior to the actual approval of a project by the Secretary

of Transportation. The hortatory declaration of congressional policy set forth in 23 ('.S.C. 101()

does not constitute a mandate to approve all qualifying projects for which fund

are available. The bighway taxes imposed under the Highway Revenue Act of 1956 (June 90

1956, c. 462, 70 Stat. 387, 397) are not paid directly into the Highway Trust Fund, and the assets in that fund are neither directly nor automatically avail

able for the payment of Federal contributions to the States. The President has the power to impound Federal-aid highway funds after thes

have been apportioned to the States but before they have become obligated as the result of the approval of a specific qualifying project.

FEBRUARY 25, 1947. THE SECRETARY OF TRANSPORTATION.

Dear MR. SECRETARY: This is in reply to your letter of February 21. 1967. It questing my opinion as to the legality of a reduction in the amount of Federal-aid highway funds which may be obligated during the Fiscal Year ending June 30. 1.967,

The facts underlying your inquiry are as follows: President Johnson's message to Congress of September 8, 1966. Transmitting Proposais for Vensures for i'urting Inflation and Preserving our National Economy, announced that a reduction or deferral of lower priority Federal expenditures by approximateis $3 billion was required in order to assure the continuing health and strength of our 400omy (II. Dom. 192. Soth Cong., 2d sess., pp. 1, 4). Pursuant to this mandate the Director of the Bureau of the Budget by letter dated November 7, 1966, advised

1 Although the Department of Commerce is still technically responsible for the adminis. tration of the Federal-aid highway program, 23 U.S.C. 101, these functions are in process of being transferred to the Department of Transportation prenant ca (1)(A) (G) of the Department of Transportation Act, October 16, 1966, P.L 14670, SO Stat. 9:31, 937.

Vol. 12, Op. No. 32.

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