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"* * * Given the legislature's intention of allowing spending discretion in the executive, it would appear to be left to the legislature to decide when such discretion is abused. The legislature appears to have created much of the esettive's discretion to withhold funds and would also appear to be able to limit that discretion if it so desired.”

310 F. Supp. at 656, (emphasis added). Unlike that Court, this Court is pot being asked to decide whether, if Congress had given defendants discretion to withhold funds for anti-inflationary reasons, defendants have abused that dis cretion. That question is altogether different from the question facing this Court-whether Congress intended to deny defendants the discretion to withhold obligational authority under the federal-aid highway program for anti-inflationary reasons. Surely, there are clearer "judicially discoverable and manageable standards” for determining whether executive discretion exists at all than there are for determining whether, if such discretion exists, it has been abused.

Finally, it must be noted that defendants' invocation of the doctrine of separation of powers is utterly inappropriate, for that doctrine would be gravely threatened were this Court to accept defendants' contention that it should not address itself to the merits of this case. Defendants apparently forget that central to the effective operation of the doctrine of separation of powers is the tradition that one branch acts as a check and balance to counteract the tendency of a coordinate branch to overstep its bounds. As Justice Frankfurter wrote in his concurring opinion in Youngstown Sheet @ Tube C0. 1. Sauyer, 343 C.S. 579, 613-614 (1952):

"I know no more impressive words on this subject than those of Mr. Justice Brandeis : "The doctrine of the separation of powers was adopted by the Conrention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitalle friction incident to the distribution of the governmental powers among three de partments, to save the people from autocracy.” Jlyers v. United states, 272 U.S. 52, 293 * * *

"It is not a pleasant judicial duty to find that the President has exceeded his powers and still less so when his purposes were dictated by concern for the Sation's well-being, in the assured conviction that he acted to avert danger. But it would stultify one's faith in our people to entertain even a momentary fear that the patriotism and the wisdom of the President and the Congress, as well as the long view of the immediate parties in interest, will not find ready accommodation for differences on matters which, however close to their concern and howerer intrinsically important, are overshadowed by the awesome issues which coulfront the world."

III. THE DISTRICT COURT CORRECTLY HELD THAT DEFENDANTS LACKED THE DISCRETIOS

TO WITHHOLD OBLIGATIONAL AUTHORITY FROM PLAINTIFF FOR REASONS RELATED TO CONTROL OF INFLATION

A. Defendants Hare Not Been Given-And in Fact Have Been Erpressly

Denied- That Discretion by Congress Before turning to the specific language and legislative history of the FederalAid Highway Act, the amici curiae wish to dispel two general assumptions made by defendants. Defendants contend, first, that "absent specific mandatory language, appropriations acts have generally been considered to be of a 'fiscal and permissive nature * * *?". Second, defendants assert, in effect, that authorizations-as opposed to appropriations can never be made mandatory by Copgress, since “'[i]t would be futile to direct the President (in an authorization bill] to carry on a program unless the appropriation bill granting the necessary funds carried a similar direction.'"7

The first of these contentions raises the question of the standard of construe tion to be applied by a court in determining whether Congress intended to make a given authorization "permissive" or "mandatory." Defendants would have this Court hold that in the absence of specific mandatory language," the exeentire branch may impound funds, regardless of the clearness under the circumstances of Congress' intent that funds or obligational authority for a particular program

6 Defendants' brief at ?2 et seq.
? Defendants' brief at 29 (quoting H. Rer. No. 1715 Sist Cong., 2nd Sess.).

aot be withheld. When Justice William H. Rehnquist-then an Assistant Attorney General in the Office of Legal Counsel of the Department of Justice-testified before the Subcommittee on Separation of Powers of the Senate Committee on the Judiciary in March 1971, he articulated what we contend is the correct standard for deciding this question.

"[On) the question of trying to find a mandatory intent on the part of Congress, it is not a question of looking for the word "shall" as opposed to "may." Our office, in the memo that was published in the Congressional Record in December 1:969, concluded that in providing for certain formula grants for schools * * * Congress had indicated that these were to be spent, not necessarily because it said they shall be spent, but just from taking the overall language of the authorization bill, the enabling statute if there was one land] the particular appropriations language, and construing them together to try to find a reasonable basis what intent Congress manifested."

We submit that this test is the correct one and that the intent of Congress with respect to impoundments may best be determined by looking at the operation of the statute as a whole, as well as by examining its specific provisions. Not only does the broad operation of the statute, which we outline below, support our position that the defendants lack the discretion that they assert, but the language and operation of various specific sections buttress this conclusion.

The second of defendants' general contentions that authorizations may never be made mandatory-would, if accepted, have an absurd effect where, as here, funds are not actually appropriated until after the construction being paid for has been completed and the government has obligated itself to pay the federal share. Ordinarily, early in a session of Congress an authorization (ceiling) is enacted for a particular program for the coming fiscal year, and then after all of the authorizations are approved and the budget picture is in clearer focus, Congress may appropriate a lesser amount than was authorized initially. Aside from the obvious distinction that in such circumstances Congress rather than the executive makes any reduction, it is apparent that when Congress established the Federal-Aid Highway program, it sought to eliminate this kind of year-bysear planning. It purposefully set specific authorizations for the life of the program in the 1956 Act so that intelligent long-range planning could be undertaken. Congress was well aware that highways cannot be planned, approved, built and paid for all during a single fiscal year, and so it established a long term plan to achieve its desired ends. In so doing, Congress in effect transformed the authorization/obligation stage of the funding process into the equivalent of the normal appropriation stage, since under Section 106(a), a binding commitment on the part of the l'nited States is created by the Secretary's approval of a construction project. While Congress retains the power to actually dispense money from the Highway Trust Fund for completed construction, that power is little more than a ministerial one, given the prior binding obligation of the United States under Section 106(a). Thus, if Congress is to exert any control over the level or rate of spending under the Federal-Aid Highway program, it must do so at the authorization rather than at the appropriation stage. Just as Congress could not sensibly apply the brakes at the appropriation stage if it wanted to limit the expenditures under this program, so it could not mandate the use of funds for highway construction purposes except by declaring that sums authorized to be appropriated should not be withheld from obligation. Whatever validity the construction maxims cited by defendants may have in other situations, thes clearly are inapplicable here when dealing with the long term appropriation plan of the Federal-Aid Highway program.''

• Defendants assert that "Congress is, of course. well aware of the rule than an appropriations act does not constitute a mandate to spend the funds." (Brief at 24.) As a "classic exposition of this view." they cite language in a 1951 House Appropriations Committee Report, (Brief at 26), which, however, does not support the existence of this “ruie" when read in its entirety. Instead, it shows Congress' intent that government officials not spend a npropriated funds needlessly if savings can be affected without impairing the completion of the particular program. Ohriously. if Congress appropriates $80.000.000 for the construction of a naval vessel. the full amount need not be spent if the project can be completed for $75.000.000. Thus, after acknowledging that appropriations need not be espended if sarings can be achieved without frustrating the Congressional purpose. the Committee Report rited by defendants went on to state that "Tilt is perfectly justifiable and proper for all possible economies to be effected and savings to be made, but there is no warrant or justification for the thwarting of a major policy of Congress by the impounding of funds." II. Rept. No. 1797, at 31 (excerpt reprinted in Senate Haringe, BUD!", note 2, at 3001.

Senate Hearings, supra, note 2. at 221.
10 See 118 ('ong. Rec. S1950 (Daily ed. Ort. 17, 1972) (Remarks of Senator Cotton).

Defendants' construction of the specific provisions of the Federal-Aid Highvat Act is also questionable. In applying the sensible test of statutory constructioa proposed by Justice Rehnquist, we propose to establish in the paragraphs that follow, first, that even disregarding the expression of the "sense of Congress" contained in 23 U'.S.C. § 101(c), the overall scheme of the Federal-Aid Highter Act indicates a Congressional intent not to grant the Secretary the discretioa to withhold obligational authority; and second, that both the plain language an the legislative history of Section 101 (c) indicate that in fact Congress expressly intended that the executive branch be denied any such authority.

The District Court correctly observed in its opinion that, even without the compelling language of Section 101 (c), the clear statutory scheme of the FederalAid Highway Act indicates that Congress never intended to give the Secretary the discretion to withhold from the states the obligational authority provided for by statute. 347 F. Supp. at 953. The role of the Secretary in administering the statutory scheme is, in most instances, a purely ministerial one, and where the Secretary is given discretion, the scope of that discretion is precisely limited.

The limits of the Secretary's authority become clear when various statutors sections of the Act are read together. Section 104, for example, provides that "the Secretary *** shall apportion the *** sums authorized to be appropriater for the Federal-Aid systems for that fiscal year, among the states in the following manner *** *", and it proceeds to prescribe formulae for allocating obligational authority among the states. The role of the Secretary at this juncture is a mechanical one of allotting funds in a manner pre-ordained by Congress. Section 118, which provides that sums allocated among the states shall be available for expenditure on and after the date of their apportionment, makes it clear that after obligational authority is apportioned, the Secretary's discretion is still confined. Under Section 106, the Secretary is given the discretion to approve or disapprove specific highway construction projects submitted by states, but that section expressly limits his authority by stating that “[i]n taking such action. the Secretary shall be guided by the provisions of section 109." Section 109, in turn, prescribes the bounds of the Secretary's discretion, and it certainly does not empower the Secretary to refuse to approve construction projects because of general notions about anti-inflationary policy. Finally, Section 209(g) of the Federal-Aid Highway Act of 1956, as amended, demonstrates that when Congress desired to give the Secretary the discretion to withhold obligational authority from the states (because of unavailability of funds in the Highway Trust Fund), it did so in specific terms. When all of these sections are read together, the intent of Congress is evident, and that intent manifestly was not to grant the Secretary the discretion to withhold obligational authority from the states for anti-inflationary reasons.

What effect, then, did the addition in 1968 of Section 101(c) have on this scheme? That section provides:

"(c) It is the sense of Congress that under existing law no part of any sums authorized to be appropriated for expenditure upon any Federal-Aid system which has been apportioned pursuant to the provisions of this title shall be impounded or withheld from obligation, for purposes and projects as provided in this title, by any officer or employee in the executive branch of the Federal Gor. ernment, except such specific sums as may be determined by the Secretary of the Treasury, after consultation with the Secretary of Transportation, are necessary to be withheld from obligation for specific periods of time to assure that sufficient amounts will be available in the Highway Trust Fund to defras the es. penditures which will be required to be made from such fund.

In order to analyze the effect of Section 101(c), it may be helpful to diride it into its component parts and examine the meaning of each of them. Learing aside for a moment the introductory "sense of Congress” phrase, as well as the last portion of the section beginning with "except,” the main body of Section 101(c) is a declarative statement that, under existing law, no monies can be impounded or withheld under the highway program. That portion of Section 101(c) admits of no other reading. Following the main declarative statement is the exception clause, which delineates the narrow situation in which, contrary to the general rule, funds may be withheld in accordance with the express provisions of Section 209 (g) of the 1956 Act, 23 U.S.C.A. $ 120 note (1972 pocket part). It is clear, and defendants do not assert the contrary, that their actions do not fall within this specified exception. Finally, we return to the "sense of the

11

11 23 U.S.C.A. $ 120 note (1972 Pocket Part).

Congress” language, on which defendants place such heavy reliance. In our view that phrase means no more than that Congress is declaring that the statements which follow are its interpretation of the law. We believe that the phrase is largely redundant and that Section 101 (c) would have the same meaning if it had not been prefaced by the "sense of Congress" language. The inclusion of the phrase is understandable, however, since otherwise Section 101 (c) would read more like a judicial pronouncement than a Congressional enactment. Yet the effect in either event is to announce to all concerned, especially the executive, that Congress is giving a particular interpretation to the existing provisions of the Fderal-Aid Highway Act.

Of course, Congress might have specifically “ordered" the executive to spend all of the money that was authorized, and it did not do so. We submit that this decision not to bring about a direct confrontation with the executive branch does not mean that Congress intended to change its intent with respect to prior law by adding this phrase. Congress deemed it unnecessary to "order" the Secretary not to withhold funds, since in its view he was already without that power “under existing law.”

Defendants never spell out the precise meaning that their interpretation of Section 101 (c) would produce, preferring instead to simply state that the "sense of Congress" provision makes all releases of obligational authority discretionary. Thus, under the defendants' construction, Section 101 (c) should be read as saying: “The executive has discretion to withhold or impound funds although under existing law it has no authority to do so except under certain limited situations." We submit that if Congress had decided to give such wide ranging discretion to the executive branch to withhold funds for reasons unrelated to the purpose or operation of the highway program, it would have chosen a far clearer method of doing so than the addition of a "sense of Congress” phrase in the introductory and non-operative portion of the Highway Act. What Congress did in Section 101(C) was to advise the executive that it wanted no further impoundments of highway funds and that, according to its view of the law, none was permissible except in very limited cases already expressly provided for by statute.

This reading of Section 101(c) is overwhelmingly supported by both its 1968 and 1970 legislative history, which reveals anything but the charitable view of impoundments suggested by defendants in their brief. Defendants claim with respect to the 1968 enactment (p. 32) that "[t]he Conference Committee refused to accept the mandatory House language, instead adopting the Senate bill which "contained no comparable provision' to section 14 ‘prohibit[ing] the impoundment or withholding of any apportioned funds.' See H. Rep. 1799, 90th Cong., 2nd Sess., p. 31." The language of the House bill was no more “mandatory" than the language of Section 101 (c), as enacted. The House bill provided that “[n]o part of any sums authorized to be apportioned for expenditure upon any Federalaid system which has been apportioned pursuant to the provisions of this section shall be impounded or withheld from obligation *** *” The addition to this provision of the words “It is the sense of Congress that under existing law” simply cannot reasonably be read as making the sentence one which grants discretion to the Secretary to impound funds. That Congress chose to attack the practice of impoundment with a gloved fist rather than a bare one should not be construed as a yielding by Congress of its power to the executive. 13

Furthermore, the Conference Committee did not adopt the Senate bill with respect to impoundment; indeed, it could not have since the Senate bill contained no such provision. Instead, the Conference Committee wrote its own prohibition of impoundments of authorized obligational authority. The Committee Report states, in pertinent part: “PROHIBITION OF IMPOUNDMENT OF APPORTIONMENTS AVD

DIVERSION OF FUNDS “Section 15 of the House amendment adds to section 104 of title 23 of the United States Code (relating to apportionments) two new subsections. The first of these subsections prohibits the impoundment or withholding of any apportioned funds.

** * * * The Senate bill contained no comparable provision,

12. Subsequent legislation declaring the intent of an earlier statute is entitled to great weight in statutory construction." Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 380-381 (1969).

13 This construction of the House bill is supported by the remarks of Congressman Harsha, quoted in the text accompanying note 14, infra.

"The conference substitute amends section 101 of title 23 which contains the general declaration of policy applicable to that title declaring it to be the sense of Congress that funds apportioned shall not be impounded or withheld from obligation, * * * * » 14

The caption chosen by the Conference Committee belies any interpretation of the section as not prohibiting impoundments. This mandatory construction was echoed on the floor of the House during discussion of the Conference Commit. tee Report when Representative Harsha of Ohio, a House conferee and the ranking minority member of the Public Works Committee, stated :

"Section 15 of the bill, which relates to the prohibition of impoundment of apportionments and diversion of funds, is substantially the same as in the House-passed bill. The first portion of this section was based upon my bill, H.R. 14641. This section clearly spells out what many of us have believed for some time: that existing law does now and has for some time made withholding or impoundment of apportioned Federal-aid highway funds unlawful. It reflects the firm conviction of the ('ongress that the Federal-aid highway program is far too important to permit it to fluctuate wildly." 15

Defendants' interpretation of the 1970 reenactment of Section 101(c) is simiJarly strained They state at page 33 of their brief:

“The Executive Branch continued to assert its authority to defer obligations under the "sense of ('ongress” provision, and Congress again considered this action in the Federal-Aid Highway Act of 1970, P.L. 91-60:7, 84 Stat. 1714. Rather than amend the language to prohibit the President's action, Section 107 of the 1970 Art merely ‘reiterates the sense of Congress as expressed in section 15 of the Federal-Aid Highway Act of 1968 relative to impoundment of apportioned Federal-aid highway funds.'” H. Rept. No. 91-1554, 91st ('ong., 2nd Sess., p. 19 * *

In quoting from H. Rep. 91-1554, defendants conveniently cite only the language of the truncated "section-by-section analysis" of the bill, 1970 U.S.C. Cong. & Adm. News 5392, 5130, which appears near the end of the committee report. Defendants overlooked the following discussion in an earlier section of the same report :

“PROHIBITION OF IMPOUNDMENT OF APPORTIONMENTS AND DIVERSION OF FUNDS

"Cutbacks and freezes on the availability of highway trust fund money have been invoked by the executive branch on various occasions during the past few years, allegedly as an anti-inflationary measure, even though funds were and are available in the trust fund to meet expenditure resulting from the obligation of such funds. This curb-against-inflation argument is without merit. The result. ing delars in construction inevitably mean that the costs will be greater. This stop-start manipulation of the highway program, with the uncertain position into which contractors, laborers, and State highway programers are put, cannot but help to boost the ultimate cost of the program. It has been clearly demon. strated that the Federal-aid highway program can operate successfully and efficiently only so long as its planning and programing can be based on an assured comnaratively long-term level of financing.

"The withholding of highway trust funds as an anti-inflationary measure is a clear violation of the intent of the Congress as expressed in section 15 of the Federal-Aid Highway Act of 1968. We again wish to emphasize the clear legislative intent that funds apportioned shall not be impounded or withheld from obligation * * * *** 10

Defendants also make much of the fact that the "sense of Congress" language was removed from Section 101 (d) in 1970 but not from Section 101 (C). Howerer, Congress' amendment of Section 101 (d) involved far more than the mere elimination of the "sense of Congress” phrase; the section was totally rewritten and its scope was greatly expanded. As enacted in 1968, Section 101 (d) provided only that, although monies to pay administrative expenses of the Federal Highway Administration could be appropriated from the Highway Trust Fund, administrative expenses of other agencies could not be covered by Trust Fund arropriations,

The 1968 enactment read:

"(d) It is the sense of Congress that funds authorizer to be appropriated from the Highway Trust Fund may be used to pay only those administratire er

11 H. Ren. No. 1799. 90th Corg., 2nd Sess., 196S U.S.C. Cong. & Adm. News 3331, 3537. 15 114 Cone Rec. 23709 (1985). 10 1970 U.S.C. Cong. & Adm. Wews 5392, 5401-02.

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