how convoluted the issues will be in item-veto cases. 85 Rather than drawing a hasty conclusion, it is best to recognize the matter will generate several interpretations and much litigation. Statutory Controls-"As Authorized By Law" Authorizing legislation can also serve as the legally binding allocation of a lump-sum appropriation if the authorizing language is incorporated by reference. The Principles of Federal Appropriations Law states the principle, "If an agency receives a line-item authorization and a lump-sum appropriation to be spent as authorized by law,' the line-item restrictions in the authorization act will apply just as if they appeared in the appropriation act itself." 86 How far does "as if" take us? Are the authorized line-items in referenced bills actually in the appropriations measure and would they be vulnerable to the item veto? While no cases are directly on point, the Comptroller General has made several rulings on the "as authorized by law" language. The HUD-Independent Agencies Appropriations Act for fiscal year 1963 87 made appropriations for "National Aeronautics and Space Administration, Construction of Facilities" as authorized by law. For advance planning, design and construction of facilities for the National Aeronautics and Space Administration and for the acquisition or condemnation of real property, as authorized by law, $776,237,000, to remain available until expended. The National Aeronautics and Space Administration Authorization Act for fiscal year 1963 88 authorized appropriations for specific items under "Construction of Facilities", including the following item: (3) Facility planning and design not otherwise provided for, $8,000,000. The National Aeronautics and Space Administration (NASA) wanted to use $12.4 million for advance facility planning out of the $776.2 million lump-sum appropriation for construction of facilities. NASA argued it could supplement the $8 million authorized to be appropriated for advance facility planning by transferring $4.4 million of the amount authorized to be appropriated for "Research, Development, and Operations". 89 The NASA Authorization Act for fiscal year 1963, which had authorized both amounts, had also provided authority to transfer funds between these two purposes. The Comptroller General ruled 91 that $12.4 million could be expended for advance planning and design because transfer authority was granted in the authorization. Before reaching that decision, however, the Comptroller General enunciated the fundamental principle: 92 85 GAO file B-204449, November 18, 1981 and United States General Accounting Office, Office of General Counsel, 2 Principles of Federal Appropriations Law pp. 15-19 (1982). 86 United States General Accounting Office, Office of General Counsel, 5 Principles of Federal Appropriations Laws, 103 (1982). 87 76 Stat. 716, 730-731. 88 76 Stat. 382. 89 General Counsel, National Aeronautics and Space Administration, letter to Comptroller General, GAO file B-151157, June 24, 1963. 90 76 Stat. 382, 383. 91 GAO file B-151157, pp. 1413-1417, June 27, 1963. 92 Id. at pp. 1416-1417. As a general proposition and unless otherwise provided, appropriations made to carry out authorizing laws are made on the basis that the authorization acts in effect constitute an adjudication or legislative determination of the subject matter thereof. It would appear, therefore, that the appropriations made to NASA for "Construction of Facilities" to carry out the programs previously authorized by the Congress in the related authorization act must be expended in strict accordance with the authorization, not only with respect to the amount to be expended for specific project items but, also, as to the nature of the work or improvement authorized. In this case, of course, the general proposition is modified because transfer authority was specifically provided. An appropriation to construct a bridge across the Potomac 93 was made "pursuant to" a statute authorizing construction of the bridge and prescribing its location.94 The location was not specifically mentioned in the appropriation act. The Comptroller General ruled that the appropriation was not available to construct the bridge at a location different from the one specifically authorized though the planners favored a new location.95 Another case involved the choice between constructing a dam or a channel at Ellicot Creek New York. The Flood Control Act of 1970 authorized construction of Sandridge Dam and Reservoir at Ellicot Creek.96 Legislation was later proposed, but not enacted, to authorize construction of a channel rather than the dam and reservoir. The joint resolution making continuing appropriations for fiscal year 1978 provided a lump-sum appropriation for "flood control projects, as authorized by law." 97 The Comptroller General again ruled that the authorizing statute was a legally binding limitation on the use of the lump sum and funds could not be properly expended for channel construction.98 Construction of the dam and reservoir were the only authorized projects at Ellicot Creek. These cases display some of the complexity of appropriations allocated "as authorized." They do not settle the question entirely. Once again, there are no precedents directly on the question of whether the authorization is fully incorporated and thereby available for item veto. These issues will likely generate litigation. We can anticipate some of the arguments. Suppose the President was eager to disapprove an item found only in the referred authorization, he might argue that the "as authorized by law" language is employed solely to avoid the item veto. In response, it should be noted that the "as authorized by law" language is currently employed and was used long before the President could use the item veto. In 1802, for example, Congress appropriated a lump sum for certain jobs to be performed by the Surveyor-General. Those tasks were specified by reference to enacted authorizing legislation.99 The 1802 appropriation act provided $39,296.90 "for completing certain surveys authorized by acts of Congress passed the tenth of May, one thousand eight hundred, the eighteenth of February and third of March, one thousand eight hundred and one . . .' 93 69 Stat. 246. 94 69 Stat. 961. 95 GAO file number B-125404, August 31, 1956. 96 Title II of "The Rivers and Harbors Act of 1970," 84 Stat. 1818, 1826. 97 91 Stat. 1455. 98 GAO file B-193307, February 6, 1979. 99 2 Stat. 184, 187. Section 3 of the act referred to as having been passed on May 10, 1800, begins as follows: 100 SEC. 3. And be it further enacted, That the suveyor-general shall cause the townships west of the Muskingum, which by the above-mentioned act are directed to be sold in quarter townships, to be subdivided into half sections of three hundred and twenty acres each, as nearly as may be, by running parallel lines through the same from east to west, and from south to north, at the distance of one mile from each other, and marking corners, at the distance of each half mile on the lines running from east to west, and at the distance of each mile on those running from south to north, and making the marks, notes and descriptions, prescribed to surveyors by the above-mentioned act: And the interior lines of townships intersected by the Muskingum, and of all the townships lying east of that river, which have not been heretofore actually subdivided into sections, shall also be run and marked in the manner prescribed by the said act, for running and marking the interior lines of townships directed to be sold in sections of six hundred and forty acres each. And in all cases where the exterior lines of the townships, thus to be subdivided into sections or half sections, shall exceed or shall not extend six miles, the excess or deficiency shall be specially noted, and added to or deducted from the western and northern ranges of sections or half sections in such township, according as the error may be in running the lines from east to west or from south to north * 本 * Section 1 of the act referred to as having been passed on February 18, 1801, reads as follows: 101 SECTION. 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the surveyor-general be, and he is hereby directed to cause those fractional townships of the sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first and twenty-second ranges of townships, which join the southern boundary line of the military lands, to be subdivided into half sections, containing three hundred and twenty acres each; and to return a survey and description of the same to the Secretary of the Treasury, on or before the first Monday of December next * * * Section 7 of the act referred to as having been passed on March 3, 1801, reads as follows: 102 SEC. 7. And be it further enacted, That all the aforesaid tract of country shall be surveyed by the surveyor-general, as soon as may be after the first day of September next, in the manner herein after directed. 1. So much of the said tract as lies between the northern boundary line, and the aforesaid patent of John Cleves Symmes, and associates, and Israel Ludlow's southern boundary of the seventh entire range of townships, shall be laid off into sections, agreeably to northwardly and southwardly lines, run under the direction of John Cleves Symmes; and the marks thereon made, at the time of running the aforesaid lines, for the corners of sections, shall be established by the surveyor-general, and eastwardly and westwardly lines shall be run to intersect the aforesaid northwardly and southwardly lines, in the corresponding marked points. 2. And the residue of the said tract lying north of the aforesaid southern boundary of the seventh entire range, shall be laid off into sections, according to such uniform rule and method, as, in the opinion of the surveyor-general, shall best secure the rights and interest of those who are entitled to pre-emption. 3. Such divisions shall be made of sections, according to the claim of such who obtain pre-emption right, and the contents of each and every section, and such division thereof, shall be ascertained, and the surveyor-general shall prepare and transmit a plan thereof to the aforesaid register, immediately after the said survey shall be completed, and also forward a copy thereof to the Secretary of the Treasury. Moreover, the President had an opportunity to veto the authorization when it was presented to him as a separate bill. Is it constitutional to permit him a second shot at the same language? Suppose the item-veto authority is limited to appropriation bills. Does this enhance a President's contention that he should be al 100 2 Stat. 73. 101 2 Stat. 100. 102 2 Stat. 112, 114. lowed to veto an item incorporated by reference to a previously enacted authorization? After all, he did not have the opportunity to disapprove that particular item. Summary Federal spending, unlike state spending, is largely composed of mandatory programs that would not be reached by the item veto. The remaining federal outlays flow from annual appropriation measures. Federal appropriations, unlike state measures, are lump sums. The individual projects are usually mentioned only in committee reports and other nonstatutory explanatory material. On occasion, the legislation refers to these allocations. It is not clear whether such references actually incorporate the allocations into the legislation and whether the particular items would be available to be item vetoed. By constitutional provision, statute, or judicial interpretation, many states require the legislature to adopt detailed, itemized appropriations. While itemization makes the item veto more effective, it hinders executive flexibility to administer the budget. To compensate, many state executives take an active role in the preparation of appropriation language. Federal appropriations language might be modified to make the item veto more effective, but the cost in executive flexibility and legislative independence must first be considered. ALTERNATIVES TO THE ITEM Veto at THE FEDERAL Level: A number of procedures at the Federal level provide functionally equivalent mechanisms to the item veto. In discussing the proposal to grant item-veto authority to the President, it should be recognized that "Presidents have exercised this power on many occasions." 103 Such "functional equivalents" of the item veto become apparent when one reviews the history of presidential involvement in budget execution and compares this experience with certain common justifications put forth by advocates of the item veto. It has been suggested that with the authority to exercise an item veto, the Executive might (1) reallocate budgetary resources among or within agencies, or (2) retrench and reduce overall expenditures. In fact, Presidents have accomplished both objectives with existing powers. Moreover, instances of Presidental "item vetoes" have not been confined to the appropriations sphere. On several occasions over the years a President has signed an authorization measure while at the same time informing Congress that he did not intend to enforce certain provisions of the legislation, usually on grounds that the sections in dispute were unconstitutional. BACKGROUND Federal budget documents refer to three main phases in the Federal budget process: executive formulation and transmittal, con 103 Louis Fisher, Constitutional Conflicts between Congress and the President 155 (1985). gressional action, and budget execution and control.104 Budget execution involves the actual spending of money following enactment of an appropriation law. Apportionment Under existing law, the Office of Management and Budget must apportion or allocate the funds appropriated for an agency, often by quarters of the fiscal year. The agency, in turn, allots the funds apportioned to it among its branches. The apportionment process dates back to the Antideficiency Act of 1905, which required monthly or other allotments to "prevent undue expenditure in one portion of the year that may require deficiency or additional appropriations to complete the service of the fiscal year for which said appropriations are made." 105 For many years agency heads remained responsible for administering the apportionment system. In 1921 the newly created Bureau of the Budget attempted to extend its control over agency spending levels by means of administrative regulations. In an important circular, Budget Director Charles Dawes instructed the agencies about procedures relating to apportionment. Henceforth the agencies were to consider their appropriated level as a ceiling, rather than as a spending directive. Each agency was to estimate an indispensible level of funding to carry out its activities; following review by the Bureau and approval by the President, the remainder of the appropriation, or estimated savings, was to be designated as a "General Reserve." In the aftermath of the Dawes circular, "the apportionment process now had two objectives: to prevent deficiencies (as required by statute) and to effect savings (as directed by administrative regulation)." 106 It was not until 1933, with Executive Order 6166 issued pursuant to the Economy Act of 1933, that authority for "making, waiving, and modifying apportionments of appropriations" was transferred from agency heads to the Budget Director. No longer could apportionment schedules be changed at an agency's discretion. But "[s]everal decades would pass before there was full appreciation of the relationship between apportionment authority and Presidential impoundment." 107 (Changes in apportionment practices resulting from the 1974 Budget and Impoundment Control Act are described below.) Reprogramming Reprogramming involves the shifting of funds within an appropriations account, such as moving monies between programs. Although the term "reprogramming" did not appear in congressional documents until the mid-1950's, the same kind of practice had occurred previously under labels such as "adjustments" or "interchangeability." 108 Instances of reprogramming probably increased 104 U.S. Govt. Budget for Fiscal Year 1986, at 7-2. 105 The Antideficiency Act, as amended, Section 3679 of the Revised Statutes, 31 U.S.C. 1512, had roots in an 1870 law (16 Stat. 251) which prohibited any executive department from making expenditure or future commitments in excess of appropriations for a given fiscal year. 106 Louis Fisher, Presidential Spending Power 38 (1975). 107 Id. at 40. 108 Id. at 77. Sometimes the exchanges were even called transfers, and one had to examine the context to determine whether funds were being shifted within or between accounts. |