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penses of the Federal Highway Administration (including the Bureau of Public Roads) which are incurred under this title and are attributable to Federal-aid higlways. No funds authorized to be appropriated from the Highway Trust Fund shall be used to pay the administrative expenses of any other Federal department, agency, office, or instrumentality, or any other agency, instrumentality, or entity established by Federal law, executive order, or otherwise by the Federal Government, either by transfer of funds, reassignment of personnel or activities, contract, or otherwise, unless the expenditures are to meet obligations incurred under this title, which are attributable to Federal-aid highways and are

"(1) contracted for in accordance with the Act of March 4, 1915, as amended (31 U.S.C. 686) and (A) relate to work or services of a type not usually performed by the Federal Highway Administration or (B) relate to the furnishing of materials, supplies, or equipment; or

"(2) are specifically identitied in the budget and included in an appropriation Act."

It should be noted that the "sense of Congress" phrase appears only in the first sentence of the section, which is essentially a statement of the thenexisting law as contained in Section 104(a) of Title 23. The remainder of the section, which went beyond then-existing law, was not preceded by the phrase. The section was amended in 1970 to read as follows:

"(d) No funds authorized to be appropriated from the Highway Trust Fund shall be expended by or on behalf of any Federal department, agency, or instrumentality other than the Federal Highway Administration unless funds for such expenditure are identified and included as a line item in an appropriation Act and are to meet obligations of the United States heretofore or hereafter incurred under this title attributable to the construction of Federal-aid highways or highway planning, research, or development."

The 1970 enactment greatly changed the existing lai to prohibit the use of Highway Trust Fund monies for not merely administrative expenses, but (with some exceptions) for any expenditure "by or on behalf of any federal agency other than the Federal Highway Administration. There was no Congressional interpretation of existing law in the 1970 version, and therefore, the “sense of Congress” language was not employed.

When examined in their full context, therefore, the 1968 and 199 legislative histories underlying 23 U.S.C. $ 101(c) fully suịport its plain language. Congress obviously felt it unnecessary to go to any greater lengths in prohibiting executive impoundments, since it was of the view that it had already preciuded such impoundments "under existing law.” When this statement of Congress' understanding of the law is coupled with the statutory scheme of the remainder of the Federal-Aid Highway Act, the conclusion is inescapable that Congress intended to deny defendants the discretion to withhold obligational authority from the states for anti-inflationary reasons.

Defendants also seek to obfuscate the meaning of Section 101 (c) by discussing four "occasions (on whichl Congress has rejected efforts to amend section 101(c) to make that section mandatory.” Defendants' brief at 34 et seq. Three of the four bills were never reported out of committee and were never considered on the floor of either house. As has been noteil, “[i]f the failure of enactment of every amendment offered for the consideration of Congress were necessarily held to shed light on the legislation sought to be amendel, the search for Congressional intention would be endless and fruitless." United States v. Guerlain, Inc., 155 F. Supp. 77, 82 (S.D.N.Y. 1957), jdgmt. vacated on other grounds, 358 U.S. 915 (1958). The fourth bill, S. 3939, was not an amendment to Section 101(c) at all, although it did propose a revised funding procedure under which the Secretary would have been unable to withhold obligational authority. The measure passed the Senate without a single dissenting vote. Defendants' brief is incorrect in its observation that "[t]he conference committee accepted the House Version (of S. 3939) without mandatory spending requirements.” (1). 37). In fact, the conference committee, for reasons unrelated to the present discussion, was unable to agree and accepted neither the House nor the Senate version. See 118 Cong. Rec. S18351 et seq. (Daily ed. Oct. 14, 1972, Part III). The failure of enactment of this bill, which was introduced four years after the passage of Section 101 (e) and which covered a broad range of matters other than im

17

17 S. 4049, 90th Cong.. 2nd Sess. (1968); H.R. 1214, 91st Cong., 1st Sess. (1969); S. 3877, 92nd Cong., 2nd Sess. (1972).

poundment, is of little, if any, assistance in construing the plain language of the Federal-Aid Highway Act.

In addition to their discussion of bills unsuccessfully seeking to amend the Ilighwy Act, defendants also attempt to capitalize on the deletion in conference committee of a provision in the Senate-passed version of the Foreiga Assistance Act of 1971 which, if enacted, would have precluded the expenditure of foreign aid funds until all impounded funds were released for domestie pri grams, including highway construction. There was no comparable prorision in the House bill. The conference committee narrowed the provision to require tot release of some impounded funds, but not those being withheld in some other areas, including the highway program. In what Senator Fulbright called "one of the most difficult [conferences) in which I have participated in my 26 yer in the Senate," is the conference committee obviously reached a compromise tri accommocinte the divergent positions of the two houses. The Senate conferred may logically have concluded that they could afford to narrow the section in their bill without overly compromising their position, since the primary purpose of the Senate Foreign Affairs Committee in including the provision initialis had been "to give the American public some indication that the Committee is just as aware of our domestic needs as it is of the needs of other countries." S Rep. No. 92–432, 92nd Cong., 1st Sess. (1971) [reprinted in pertinent part at 117 Cong. Rec. $21906 (Daily ed. Dec. 17, 1971)]. This objective could almost as easily be achieved by the narrower provision as by the broader. The Senate conferees may also have had in mind that the intent of Congress with respect to the impoundment of highway funds that already been adequately expressed, whereas ('ongress had not heretofore expressly voiced its disapproval of some other impoundments. In any event, that Congress accepted this compromise provision in the wake of an extraordinarily difficult conference rather than reject an entire bill pertaining to an important area totally unrelated to the highway program, should not be twisted into a legislative endorsement of the withholding of highway construction funds.

In summary, defendants have attempted to cloud the clear intent of Congress with respect to the withholding of contractual authority under the Federal-Aid Ilighway program by leading this Court on a foray through carefully excerpted portions of the legislative history of Section 101(c), as well as through discussions of other legislation unrelated to that section. In many cases defendants have misstated the cited legislative histories, and in almost every case the leg. islation discussed has little or no bearing on the intent of Congress as manifestet by both the overall statutory scheme and by the specific provisions of the Federal. Aid Highway Act. The language of Section 101(c) must not be lost among this deluge of legislative history, even though, as we have established above, the direct legislative history clearly supports the interpretation which we give that section. The plain language of Section 101 (c) demonstrates that Congress intended that highway construction funds not be impounded and that it interpreted existing law as precluding that practice. For this Court to require any clearer, more “mandatory” statement of Congress' intent would be to thwart the aims of Congress and to completely abandon traditional approaches to statutory construction.

B. The Erecutive Branch is Not constitutionally Empowered to Decline tn 4d.

here to Congress' Intent that contractual Authority Not Be Withheld From the States Under the Federal-Aid Highway Program

We have seen that under the Federal-Aid Highway Act of 1956, as amended. defendants have been denied the discretion to impound for anti-inflationary reasons obligational authority provided for by that statute. Defendants do not contend, moreover, that they have been given that discretion by any other Act of Congress. The further question arises whether, despite any Congressional mandate to the contrary, the executive branch has been granted imponndment power by any Constitutional provision. If the executive branch possesses ans such constitutional authority, it would be free to disregard the contrary statutory demands of Congress.

In their brief, defendants have asserted no Constitutional power in the executive branch to withhold obligational authority where Congress had indicated

1$ 117 Cong. Rec. S21903 (Daily ed. Dec. 17, 1971).

its intent to the contrary. However, defendant Weinberger has asserted such a Constitutional power in testimony before a Congressional committee, la

In our view, the notion that the executive branch has any inherent power to decline to obligate funds authorized by Congress runs contrary to the entire scheme of the Constitution. First, Congress is given the legislative power, including the power under Article I, Section 9, to appropriate funds; the executive branch is given no role in the legislative process other than the power under Article II, Section 3, to recommend legislation and the limited veto power under Article 1, Section 7. Furthermore, the President is required by Article II, Section 3, to “take care that the Laws be faithfully executed.” Finally, the Framers clearly intended to limit the veto power by requiring that the President veto only entire bills and by providing for a Congressional override. Yet by refusing to spend or obligate funds authorized by Congress, the executive may effectively exercise an "item veto,” destroying or delaying a particular program while avoiding the potential embarrassment of a public veto message and the risk of a Congressional override.

Thus, the Framers clearly intended that once Congress has made the policy determination that a program should be funded and has indicated that the executive should not have the discretion to spend or obligate funds at less than the full amount provided for, then the executive must “faithfully execute" the program. This view was adhered to in a memorandum authored by Justice William Rehnquist when he was serving as an Assistant Attorney General in the Office of Legal Counsel of the Department of Justice. The memorandum, which was addressed to the Deputy Counsel to the President and which concerned the President's authority to impound funds appropriated for aid to federally impacted schools, reads in pertinent part as follows:

"With respect to the suggestion that the President has a contitutional power to decline to spend appropriated funds, we must conclude that existence of such a broad power is supported by neither reason nor precedent. There is, of course, no question that an appropriation act permits but does not require the executive branch to spend funds. See 42 Ops. A. G. No. 32, p. 4 (1967). But this is basically a rule of construction, and does not meet the question whether the President has authority to refuse to spend where the appropriation act or the substantive legislation, fairiy construed, require such action.

**Although there is no judicial precedent squarely in point, Kendall v. United States, 12 Pet. 524 (1838) appears to us to be authority against the asserted Presidential power. In that case it was held that mandamus lay to compel the Postmaster General to pay to a contractor an award which had been arrived at in accordance with a procedure directed by Congress for settling the case.

"[T]he mere fact that a duty may be described as discretionary does not, in our view, make the principle of the Kendall case inapplicable, if the action of the federal officer is beyond the bounds of discretion permitted him by the law.

"It is in our view extremely difficult to formulate a constitutional theory to justify a refusal by the President to comply with a Congressional directive to pend. It may be argued that the spending of money is inherently an executive function, but the execution of any law is, by detinition, 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 executive them.

"It has been suggested that the President's duty to "take care that the laws he faithfully executed" might justify his refusal to spend, in the interest of preserving the fiscal integrity of the Government or the stability of the economy. This argument carries weight in a situation in which the President is faced with conflicting statutory demands, as, for example, where to comply with a direction to spend might result in exceeding the debt limit or a limit imposed on total obligations or expenditures. See, c.9., P.L. 91–47, title IV. But it appears to us that the conflict must be real and imminent for this argument to have validity; it would not be enough that the President disagreed with spending priorities established by Congress. Thus, if the President may comply with the statutory

Aluthority for the President to establish reserves is derived basically from the constitutional provisions which vest the executive power in the President.

Most often it is the general provision of article II, that the President "take care that the laws be faithfully executed," which authorizes and occasionally requires that the President withhold appropriated funds,

*** The President, 'in the exercise of his authority as Chief Executive, must be concerned with the execution of all the laws, not simply with those laws which appropriate funds or which authorize the making of appropriations for particular programs.

Senate Hearings, 8u pra note 2, at 93 (Weinberger testimony).

budget limitation by controlling expenditures which Congress has permitted bot not required, he would, in our view, probably be bound to do so, eren tbunch he regarded such expenditures as more necessary to the national interest than those he was compelled to make.20

Thus, where the Congressional intent was not to cede him any impoundmeat power legislatively, the President is not constitutionally empowered to declint to obligate funds authorized by Congress.

CONCLUSION

The issues confronting this Court overshadow any damage, albeit considera. ble, which has been suffered by the plaintiff in this case. Of far greater concen is the erosion of fundamental constitutional concepts, which Senator Ervin sudmarized when he stated :

"In this era, the powers of the executive branch have become dominant is the operation of the governmental structure. The power of the purse is one of the few remaining tools which Congress can use to oversee and control the burgeoning Federal bureaucracy. Congress is constitutionally obligated to make legislative policy and is accountable to the citizens for carrying out that oldiga tion. The impoundment practice seriously interferes with the successful operation of that principle and places Congress in the paradoxical and belittling rile of having to lobby the executive branch to carry out the laws it pases." Senate Hearings, supra note 2, at 3.

Accordingly, the amici curiae urge this Court to hold that (1) ferieral juris. diction exists in the instant case; (2) the issues presented are justiciable; 13, the Federal-Aid Highway Act, when fairly construed, reflects Congress' intent not to grant the executive the discretion to withhold authorized funds; and 1 in view of the intent of Congress, the defendants acted unlawfully in withholdisg obligational authority under the Federal-Aid Highway program. Respectfuily submitted.

G, RICHARD Fox, ESQ. Attorney for Amici Curiae Senator Samuci J. Ertin, Jr., et al. Of counsel : Alan B. Morrison, Esq. W. Thomas Jacks, Esq. January 2, 1973.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

No. 73-154-AAH COMPLAINT FOR DECLARATORY JUDGMENT AND MANDAMU'S TO ALLOT

FUNDS PURSUANT TO STATUTE

GEORGE E. Brown, Jr., PLAINTIFF,

V8.

WILLIAM D. RUCKELSHAUS, as Administrator of the Environmental Protection

Agency, DEFENDANT. Plaintiff, GEORGE E. BROWN, Jr., by his attorneys, complaining of defendant. alleges :

1-COMPLAINT 1. In this action plaintiff seeks an order declaring the duty of defendant William D. Ruckelshaus, Administrator of the Environmental Protection Agenes. to "allot" to the State of California for the construction of water pollution control facilities the sums of money which he is mandated to allot pursuant to the Federal Water Pollution Control Act Amendments of 1972, Pub. L. 92-7) (October 18. 1972) 86 Stat. 816 (hereinafter “Act"), and specifically bs Section 205 (a) of the Act.

II-JURISDICTION AND VENUE

2. This action is brought pursuant to Section 505(e) of the Act. 5 t.sc. $8 701-706 and 28 U.S.C. $$ 1361 and 2201. This Court has jurisdiction of this action by virtue of 28 L.S.C. $$ 1331 and 1332, because this action arises under the

20 Senate Hearings, supra note 2, at 283–284.

laws of the United States; there is diversity of citizenship between the parties and the amount in controversy exceeds $10,000.00, exclusive of interest and costs. This Court also has jurisdiction of this action by virtue of 28 C.S.C. $ 1361 because the action is in the nature of mandamus to compel an officer of an agency of the United States to perform a duty owed to the plaintiff. an actual and justiciable controversy exists between the parties regarding which plaintiff requires mandatory relief, as well as a declaration by the Court of his rights and of defendant's obligations and duties.

Venue is properly laid in this Court pursuant to 28 U.S.C. § 1391 (e).

III—THE PARTIES 3. At all times hereinafter mentioned, plaintiff George E. Brown, Jr., was and is a citizen of the United States and a resident of San Bernardino County in the State of California ; and is and has been since January 3, 1973, a member of the United States House of Representatives from the 38th District of the State of California.

1. At all times hereinafter mentioned, defendant William D. Ruckelshaus (hereinafter “Administrator"), was and is the Administrator of the United States Environmental Protection Agency. The Administrator is charged by Section 101 (d) of the Act with the responsibility of administering the Act. The Administrator performs his official acts (including the act complained of herein) in and is officially a resident of the District of Columbia. The Administrator is not a citizen of the State of California.

IV-CLASS ACTION ALLEGATIONS

5. By virtue of Section 201 (g) of the Act, (the plaintiff and all other citizens of and resid: nts within the State of California) will be direct beneficiaries of federal grants for the construction of publicly owned treatment works in that such grants for such construction will directly benefit and enhance the quality of the environment of the plaintiff's area of residence hy virtue of a significant lowering of water pollution levels in waterways which the plaintiff uses for recreational and other purposes and in which plaintiff has aesthetic, ecological and related interests. The Administrator's refusal to allot to the states, pursuant to Section 207 of the Act, the full amount of the sums authorized to be appropriated by Section 207 of the Act injures the plaintiff and all other citizens and residents of San Bernardino County and the State of California who use the waterways of San Bernardino County and the State of California for recreational and other purposes and in which plaintiff and others have identical aesthetic, ecological and related interests.

The Administrator's failure to allot the sums required by the Act to be alloted to the State of California reduces the number and amounts of the federal grants to the plaintiff's area of residence, the County of San Bernardino and to the State of California which can be obligated by the Administrator. Therefore, this action raises questions of law and fact common to the plaintiff and other citizens and residents of San Bernardino County and the State of California and the plaintiff's claims herein are typical of the claims of other such citizens and residents of San Bernardino County and the State of California and the plaintiff will fairly and adequately protect the interests of such other citizens and residents. This action is maintainable as a class action in accordance with Fed.R. Civ.P. 23(b) (1) (A), 23(b) (1) (B), and 23(b) (2).

V-STATUTORY PROVISIONS

6. The Act was passed by the Senate and the House of Representatives after two years of legislative hearings. It was thereafter vetoed by the President of the United States. On October 18, 1972, the Act was passed over the veto of the President.

7. Pursuant to Section 101(a)(4) of the Act, “it is the national policy that federal financial assistance be provided to construct publicly owned waste treatment works” for the treatment of wastes that are discharged into the nation's waters.

8. The Act establishes procedures by which states and municipalities may secure the Federal financial assistance provided by the Act in the amount of seventy-five percent (75%) of the cost of approved municipal sewers and treatment works.

9. The Act sets forth a multi-step procedure pursuant to which funds are made available to qualified applicants:

90-538-73 -64

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