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appropriation. See Impoundment of Appropriated Funds: The Decline of Congressional Control Over Executive Discretion, Frank Church, 22 Stanford L. Rev. 1240, 1246 (1970); Separation of Powers and the Uncommon Defense: The Case Against Impounding of Weapons System Appropriations, John H. Stassen, 57 Geo. L.J. 1159, 1182 (June, 1969).
9. This failure to explicitly require spending arguably implies that Congress intended the Executive to have discretion as to how mueh, if any, of the appropriation should be spent. Further, the failure to provide standards in the appropriation laws themselves by which the Executive is supposed to determine how much to spend, arguably implies that the Executive has very large discretion and is to use its own judgment.
(This alleged implication of unfettered discretion is, however, legally unsupportable. The Executive has the clear duty to execute all substantive laws of Congress, including those, for example, for public housing, model cities and urban renewal. To determine how much of any appropriation to spend the Executive must therefore evaluate the substantive law involved and determine how much would be necessary to effectuate its purposes and satisfy the Government's duties under the law. See generally Separation of Powers and the Uncommon Defense, Stassen, supra. Assistant Attorney General (now Justice) Rehnquist recognized this point in 1969. He wrote: “An appropriation is not in itself ordinarily interpreted as a direction to spend. To determine whether or not there is a duty to spend one must examine the substantive legislation." quoted in Impoundment of Appropriated Funds, Church, supra at 1246.)
10. In fact, a United States District Court recently refused to invalidate Executive impoundment of $150,000,000 of urban renewal funds on the explicit ground that Congress had not ordered the Executive to spend the money and that the Executive therefore had discretion not to spend it. Housing Authority of the City and County of San Francisco supra at 656. In the opposite situation, however, in which Congress explicitly prohibited impoundment the District Court invalidated and enjoined the impoundment. State Highway Commission of Missouri, supra.
11. As long as appropriations laws do not explicitly provide how much the Executive must spend or by what standards the amount of spending is to be determined, the Executive can argue that Congress has delegated to it the discretion to determine how much to spend. As long as the Executive can argue that Congress has legally authorized it discretion to impound, Congress is in a relatively weaker position to claim the impoundment is illegal or unconstitutional. In this situation the Executive may argue that one need not even reach the question of whether the Executive would have the constitutional power to impound funds in violation of an Act of Congress because no Act of Congress prohibits the impoundment; to the contrary, the Executive may argue, Congress has implicitly authorized impoundment.
12. Conversely, however, if Congress now enacted laws which explicitly provided that the Executive must spend certain portions of appropriated funds, or provided exclusive standards by which the Executive must determine how much to spend, and the Executive then refused to spend the sums mandated, the Executive's action would then unquestionably become prima facie illegal. At that point the Executive could only justify impoundment by showing either that the laws mandating spending were unconstitutional or that, although they were constitutional, the Executive has some other independent constitutional authority to impound which is superior to Congress' constitutional power to prohibit impoundment.
13. For the reasons stated briefly in paragraphs 1-5 above, it seems clear that Congress has the constitutional authority by enacting laws, either with Presidential approval or over Presidential veto, to mandate that certain portions of appropriations be spent and to prohibit impoundment of approriated funds. Further, in light of the Supreme Court's opinion in Youngstown Sheet and Tube supra at 588, in which the Court held, inter alia, that "The Constitution did not subject this law-making power of Congress to presidential . . . supervision or control . . .", it seems highly unlikely that the Executive could find any independent constitutional authority to impound funds in violation of Act of Congress and superior to Congress' constitutional authority to prohibit impoundment.
Based on the above analysis, we believe there are two gaps that need to be filled. First, Congres should explicitly provide that certain portions of appropriated funds must be spent or provide exclusive standards by which the Executive must determine spending. Second, Congress should guarantee there is some procedural mechanism to review whether or not any particular Executive impoundment is in keeping with the intent of Congress.
As to the first recommendation we suggest Congress enact a general appropriation law which would formally embody what we believe is existing Congressional intent and what such intent would legally be construed to be, viz. : as to every appropriation, the Executive must spend whatever amount of appropriated funds is necessary (up to and including the entire appropriation,) to fully achieve the purposes and satisfy the Governments' duties under the substantive law involved, and no other interests whatsoever may be considerd in determining the amount to spend, (including, for example, avoiding inflation or high taxes,) except insofar as explicitly provided by Act of Congress. (Under such a law Congress would, of course, retain the power to explicitly provide in extraordinary situations that the Executive must spend the entire amount of any specific appropriation if Congress should judge that was necessary. Similarly the above formulation is not intended to disturb the requirement of the AntiDeficiency Act, 31 USC Sec. 665 (e) (1) (3) that all monies be spent efficiently.
As to the second recommendation, we note that private citizens and groups have already begun to go to federal courts to challenge impoundments, e.g. State Highway Commission of Missouri and Housing Authority of the City and County of San Francisco, supra, and believe that it is important to preserve this avenue of review. If Congress sufficiently narrowed the Executive's discretion to impound as suggested in recommendation one, judicial review might well be a sufficient procedure to effectuate Congressional intent. In this case, periodic Congressional review, as outlined in Sen. 373 might be unnecessary and burdensome on Congress.
On the other hand, insofar as Congress is to be directly involved in the process of periodically reviewing impoundments we have two major reservations about the approach in Sen. 373. The bill's formulation may encourage the Executive to impound whenever it desires to on the ground it has a 60 day grace period to impound and will have a "second bite at the apple” to persuade Congress not to spend funds Congress already decided at the appropriation stage it intended to spend. This could lead to weakening of important social programs. Se Sen. 373 might effectively preclude judicial review of Executive decisions to impound because if Congress subsequently approved the impoundment plaintiff's argument that the impoundment violated the substantive law might be eliminated by the subsequent Congressional ratification of Executive action.
STATEMENT OF REPRESENTATIVE JOE L. EyINS (D-TENN.), CHAIRMAN OF HOUSE
SUBCOMMITTEE ON PUBLIC WORKS AND ATOMIC ENERGY COMMISSION APPROPRIATIONS, FEBRUARY 6, 1973
I want to thank the distinguished Chairman and Members of this Committee for this opportunity to share with you my strong views on the importance of regaining and restoring to Congress the eroded powers and prerogatives which have been captured by the Executive Branch of our Government.
I want to commend and congratulate the distinguished Chairman for his great work in this most important area. As one of the great constitutional lawyers of our time, the Chairman has great influence and prestige throughout the Nation—which immeasurably enhances the caliber, esteem and impact of these hearings.
As you may know, I have voiced my concern over the continuing loss and erosion of Congressional power for more than a decade—it has been obvious for several years that the Bureau of the Budget-now glamorized as the Office of Management and Budget-has assumed ever-increasing power at the expense of the Congress.
The rising curve reflecting the increasing power of the OMB can be compared with a falling curve demonstrating the decrease in power of the Congress.
To employ a trite, but nevertheless true, analogy, like the fictitious Dr. Frankenstein we have created a monster that is operating out of our control. In my opinion, it is time to bring this monster back to the laboratory and perform some corrective surgery--perhaps some legislative surgery to remove some of the powers of OMB and restore this office to its natural role as a budget agency, rather than a super-bureaucracy seeking to impose its will on both the Executive and Legislative branches of Government.
The OMB, for example, tells officials in Departments and Agencies precisely what they can request of Congress and from Congress. They are directed not to volunteer any information contrary to the budget they are directed to support.
Further, officials of Departments and Agencies are instructed to provide certain information to OMB but to withhold that information from Congress.
For example, our Subcommittee on Public Works and Atomic Energy Commission Appropriations—which I am honored to serve as Chairman-now finds that OMB has prohibited the U.S. Corps of Engineers from providing the Committee with information concerning the capability of the Corps of Engineers on specific projects.
So, in addition to substantially negating the appropriations process through impoundments, and the legislative process through executive termination of programs authorized and funded by Congress, the OMR is restricting the oversight function.
My first recommendation is that the Committee carefully examine the possibility and desirability of repealing all prior legislation relating to impoundment and OMB and recommended legislation responsive to the challenge which OMB has directed at our constitutional system of checks and balances.
At this point I should like to call attention to a partial listing of impoundments which my staff has compiled, based on information provided by officials of agencies and departments. OMB has refused to provide this information. This listing is provided as an addendum to my testimony.
I should like now to just briefly point out that a reading of the Federalist papers and other documents relating to the work of the Constitutional Convention shows clearly that Congress was to be the sole author and finisher of legislative faith and power.
Our founding fathers had been through the ordeal of executive tyranny and as the distinguished historian, Dr. Charles A. Beard, pointed out in The Republic.
“The framers of the Constitution expected that Congress should be the dominant branch of the Federal Government ... They vested in Congress immense legislative powers. They gave it the power of the purse and the power of the swordthe two mighty engines of government. They authorized Congress to determine the structure of the executive departments, the powers of all administrative officers, the number of justices in the Supreme Court, the appellate jurisdiction of that court, and the form and jurisdiction of inferior Federal courts."
However, in our time the Executive has waged war without consent of Congress-withheld appropriations at will-negated legislation through executive fiat-drastically revised the structure of the Federal Government without the approval of Congress-evading testimony by claim of Executive privilege and generally proceeding to go as far as it can go in assuming legislative power and prerogatives.
With that background in mind, my further recommendations are as follows:
*I have co-sponsored in the House (H.R. 1843) the bill S. 373 introduced in the Senate by the distinguished Chairman, curtailing and circumscribing powers which the President has assumed to impound, freeze and withhold funds appropriated by the Congress. Although I have some reservations concerning even a tacit concession of the right to impound—this bill is a strong, constructive action and I believe we need strong action at this point. I urge that this bill be reported and passed in the public interest.
*I further recommend that the Joint Committee established in the debt ceiling legislation passed at the conclusion of the 92nd Congress be made a permanent Committee to strengthen the fiscal control process internally in the Congress, with a staff of such sufficient quality and size that Congress can be provided with full information on budgetary and fiscal matters—uncolored by Executive and OMB dogma, interpretations and prejudice.
*In vital and important appropriations, the expenditure of funds for specified purposes can be directed and mandated in specific instances.
*All who understand the depth of the threat to legislative independence and power should encourage our Colleagues to stand with us on a bipartisan basis against Executive encroachment. The time has come to stand and fight for principle--and for Congress as a strong co-equal branch of Government.
*We must be strong because we are faced with strong posture from the Executive. Some Committee Chairmen have indicated they plan to take no action on requests for appropriations unless and until programs cancelled by executive fiat have been restored and funds impounded arbitrarily have been released. Congress will be responsible in this area.
*All committees should demand that all information from the Executive Branch required in the exercise of the oversight function of the Congress should be provided—and subpoenaed if necessary.
In other words, we must apply some pressure to the Executive Branch rather than being the consistent target of pressure from the Chief Executive-put the shoe on the other foot and let it pinch if necessary.
These are my recommendations and I want to again thank the distinguished Chairman and Members of this Committee for this opportunity of presenting my views on this most important subject of separation of powers.
JANUARY 15, 1973. CHAIRMAN EVINS RELEASES PARTIAL LISTING OF IMPOUNDMENT BY OFFICE OF
MANAGEMENT AND BUDGET OF FUNDS APPROPRIATED BY CONGRESS
Representative Joe L. Evins (D-Tenn.), a member of the Committee on Appropriations and Chairman of the Subcommittee on Public Works and Atomic Energy Commission Appropriations, today released a partial listing of funds totaling more than $12 billion appropriated by the Congress for Fiscal Year 1973 and which are being wit eld, frozen and impounded by the Office of Management and Bu
Evins said OMB had refused to release the information and that some Departments and agencies had complied with his request for the amount of funds withheld.
Funds withheld and impounded by OMB include the following:
Department of Transportation, $2,000,000,000 (for Federal-aid highways, including Interstate).
Department of Defense (Corps of Engineers), $20,462,000 (for construction and planning on public works projects).
Department of Commerce, $243,000,000 including $109,555,000 for water, sewage and industrial expansion grants by the Economic Development Administration,
Environmental Protection Agency, $6,000,000,000.
Veterans' Administration, $111,786,000 (including $16,786,000 for reduction in apportionment).
Appalachian Regional Commission, $65 million.
"It is interesting to note that the OMB continued its pattern of cavalier treatment of the Congress by refusing to release public information. I am advised by officials of these Departments and agencies that many of the figures provided will probably have been increased by the time the Fiscal Year 1974 budget is submitted to the Congress.
"The continued freezing, impounding and withholding of funds represents an encroachment on the constitutional powers and prerogatives of the Congress to appropriate funds in the public interest and this challenge must be met with all means available within the structure of the Congress.
"If this trend is not checked, the legislative and appropriations committees of the Congress could well be reduced to exercises in frustration and futility. OMB has usurped Congressional power to the extent that it substitutes its judgment for the legislative intent of the Congress and substitutes is priorities for legislative priorities established by law by Congress.
"The Administration describes its major domestic program objectives as providing more power to the people. In reality the policies of this Administration are centralizing powers in the Bureau of the Budget and other executive offices of the President.
“With one hand the Administration distributes revenue-sharing checks. With the other hand the Administration takes away far more by eliminating or curtailing Federal programs of assistance to our people in laws passed by Congress.
"Revenue-sharing and revenue-freezing call to mind the old shell game-now you see it, now you don't. In my view state and local governments are going to see much less overall Federal assistance under this policy of constant cutbacks. "These practices of OMB are threatening our constitutional system of check and balances.
“As one who has fought erosion of Congressional power and executive encroachment on the Congress for many years, I am delighted to note the strong statements made by the Majority leadership in both Houses of Congress indicating a determination to regain the lost power and prerogatives of the Congress in the public interest."
Information on impoundments provided by officials of departments and agencies
$500,000 Agricultural Research Service: Agricultural Research Service (annual)
8, 048, 000 Agricultural Research Service (no year).
1, 650, 000 Animal and Plant Health Inspection Service..
2, 046, 000 Cooperative State Research Service_
1,500,000 Extension Service----
3,000,000 Statistical Reporting Service.-
50,000 Economic Research Service_
275,000 Farmer Cooperative Service--
100,000 Agricultural Stabilization and Conservation Service: Rural environmental assistance program.
210,500,000 Water bank program.
10,000,000 Rural Electrification Administration : Loans..
456, 028, 000 Farmers Home Administration: Rural water and waste disposal grants..
120,000,000 Rural housing for domestic farm labor..
3, 147, 000 Salaries and expenses_
500,000 Rural housing insurance fund.
367, 500,000 Soil Conservation Service: Conservation operations--
5, 000, 000 Resource conservation and development...
6,000,000 Watershed planning---
500,000 Watershed and flood prevention operations...
17, 412, 500 Great Plains conservation program..
62, 500 Agricultural Marketing Service: Marketing services ---
36, 000 Payments to States and possessions--
1, 214, 755,000
Total, USDA, excluding Forest Service--
Forest protection and utilization (annual).
21, 720,000 12, 601, 900 18,000,000
Total, Department of Agriculture.
1, 267, 076, 900 Department of Commerce: Economic Development Administration..
109, 555, 000 Maritime Administration --
55, 000, 000 National Oceanic and Atmospheric Administration
30, 000, 000 Miscellaneous
48, 445, 000 Total, Department of Commerce_
243,000,000 Environmental Protection Agency: Waste treatment grants (2year authorization for fiscal years 1973 and 1974)
6,000,000,000 Department of Health, Education, and Welfare:
Direct Federal construction (apportionment awaits development of approved plans and specifications).
44, 892, 087 Postsecondary innovation
10,000,000 Higher education insured loans---
1, 905, 400 Social and rehabilitation service---
Total, Department of Health, Education, and Welfare----
56, 997, 490