An instance of discrimination against a section of an authorization bill occurred in 1920, when President Wilson signed a merchant marine bill. He indicated that he would not, on advice from the State Department, carry out certain of its provisions. A message from the State Department explained that the President did not consider the statutory direction an exercise of any constitutional power possessed by Congress. 131 The message continued:

The action sought to be imposed upon the Executive would amount to nothing less than the breach or violation of said treaties, which are thirty-two in number and cover every point of contact and mutual dependence which constitute the modern relations between friendly States. Such a course would be wholly irreconcilable with the historical respect which the United States has shown for its international engagements and would falsify every profession of our belief in the binding force and the reciprocal obligation of treaties in general. 132

More recently, Presidents also disapproved portions of bills they have signed into law. In 1971 President Nixon, while signing a military authorization bill, stated that one section (the so-called Mansfield Amendment relating to Southeast Asia) did not represent the policy of his Administration and he thus regarded the section as "without binding force or effect." 133 This attempted exercise of a de facto item veto was subjected to a judicial challenge. In 1972 a Federal court nullified the Nixon position: "No executive statement denying efficacy to the legislation could have either validity or effect." 134

President Ford exerted such selective enforcement akin to an item veto on at least three occasions in 1976. Ironically, his objection in each instance derived from his interpretation that the provisions amounted to unconstitutional legislative veto devices. The first occurred on February 10, 1976, with the signing of a defense appropriations bill. The measure contained requirements for committee approval by the Armed Services and Appropriations Committees of both Houses of certain Executive actions. President Ford characterized this procedure as a legislative encroachment upon the constitutional powers of the Executive Branch and announced that he would treat the provision "as a complete nullity." 135

A similar message accompanied the signing of the Foreign Assistance Appropriations bill on July 1, 1976. President Ford indicated that he had "serious reservations regarding one element of the bill," a provision which conditioned the availability of appropriated funds in certain instances upon approval by the Appropriations Committees. In the President's view, the requirement "violates the fundamental constitutional doctrine of separation of powers." He continued, however: "Since I view this provision as severable from what is an otherwise valid exercise of legislative authority, and because it is presented for my signature in the last week of the fiscal year, I am not withholding my approval." 136

131 17 Richardson, Messages and Papers 8871 (September 24, 1920). This example of selective enforcement, along with most of those which follow, is cited in Fisher, Constitutional Conflicts, at 157.

132 17 Richardson, Messages and Papers 8872.

133 Public Papers of Presidents, 1971, at 1114.

134 Da Costa v. Nixon, 55 F.R.D. 145 (E.D. N.Y. 1972). 135 12 Wkly. Comp. Pres. Doc. 172 (February 10, 1976). 136 Id. at 1104 (July 1, 1976).

President Ford again exercised a de facto item veto on October 15, 1986, with respect to a provision which sought to establish a one-house veto over possible future extensions of authorization for a program. In signing into law the Veterans' Education and Employment Assistance Act of 1976, President Ford stated with regard to the provision in question:

As I have stated on previous occasions and reiterate again, provisions for review of executive actions by resolutions of one House are unconstitutional. In the context of the instant legislation, this provision, a nullity, is severable from the balance of the bill. 137

With regard to the deletion of these specific provisions in 1976, President Ford thus reiterated his view that the sections in dispute were nullities, but he also stressed that the provisions which he intended to ignore were entirely severable from the remainder of the legislation. 138

President Carter also objected to certain provisions of laws which he signed because he thought the provisions unconstitutional. Unlike the approach taken by President Ford, President Carter did not term the provisions in dispute a "nullity," but rather indicated that he either would treat the provision as a recommendation and not a requirement or would view it as a "report and wait" procedure.

For example, in signing the Emergency Economic Powers bill on December 28, 1977, President Carter noted his "serious concern" over the provision in the bill allowing Congress to terminate a presidentially declared national emergency by concurrent resolu

tion:

This provision of the bill may be unconstitutional. I will therefore treat the provision as requiring only that I "notify and wait" with respect to national emergencies covered by Section 207(c) of this act.139

Similary, in signing the Marine Protection, Research, and Sanctuaries Appropriations Bill on August 29, 1980, President Carter objected to a provision allowing Congress to disapprove by concurrent resolution certain designations of marine sanctuaries and stated:

I will treat the legislative veto provision as a "report-and-wait" provision. If Congress adopts a resolution under its authority, the resolution will be given serious consideration but, under my reading of the Constitution will not be considered binding.

140

Barely a week later, on September 8, 1980, President Carter reiterated his position in signing the Department of Defense Authorization Act, 1981. Objecting to a section which provided for approval by concurrent resolution of certain determinations of the Secretary of Defense, he stated:

I intend to treat this unconstitutional provision as a "report-and-wait" provision and am directing the Secretary of Defense to notify the Congress of any determination to waive the applicable limitations when reasons of national security so require. 141

137 Id. at 1519 (October 15, 1976).

138 The issue of severability of particular veto provisions continues to receive attention in the aftermath of the Chadha decision in 1983, in which the Supreme Court held legislative veto devices to be unconstitutional.

139 13 Wkly. Comp. Pres. Doc. 1941 (December 28, 1977). 140 16 Wkly. Comp. Pres. Doc. 1592 (August 29, 1980). 141 16 Wkly. Comp. Pres. Doc. 1668 (September 8, 1980).

President Carter announced objections to two sections of a Department of State authorization bill on August 15, 1979. One section was termed unconstitutional because it provided for a twoHouse legislative veto. The other reservation related to a provision which President Carter considered in conflict with his authority in foreign affairs:

Just as decisions associated with the appointment of Ambassadors are acknowledged to be a constitutional prerogative of the President, I believe that Congress cannot mandate the establishment of consular relations at a time and place unacceptable to the President. In order to protect this constitutional prerogative of the President, I will therefore regard section 108 as a recommendation and not a requirement. 142

Although the language in messages announcing selective enforcement by President Carter was perhaps more conciliatory, it is debatable whether terming a statutory mandate "a recommendation and not a requirement" is so very different in effect from declaring it an outright "nullity." Both approaches allow Presidents to rewrite bills submitted to them and appear similar in impact to the exercise of an item veto. However, these Presidential actions constitute an absolute veto. Congress has no opportunity to override. President Reagan has also stated his intention to expunge particular provisions of law which he considers unconstitutional. For example, in signing the Union Station Redevelopment Act of 1981, the President noted that the Attorney General had advised him that a legislative veto provision contained in it was unconstitutional. The President thus explained: "The Secretary of Transportation will not, consistent with this [constitutional] objection, regard himself as legally bound by any such resolution." 143

In signing the Protection of Marine Mammals legislation earlier in 1981, President Reagan opposed certain procedural exemptions and suggested that his enforcement of certain provisions of the law might be qualified because of constitutional concerns. The President further noted in his statement:

Moreover, the Department of Justice has advised me that the exemption of these regulatory actions from Executive Order 12291 should not be read to infringe in any way on the President's constitutional responsibility to supervise the Secretary of Commerce and the Secretary of the Interior in their execution of the law. I have requested the Attorney General to advise the Secretaries and the Director of the Office of Management and Budget on the actions they should take to carry out this provision of the bill consistent with the President's constitutional responsibilities. 144

Another example from the Reagan Administration involved the bid protest procedure in the Competition in Contracting Act, incorporated in the Deficit Reduction Act of 1984. When signing the bill on July 18, 1984, the President announced:

In signing this important legislation, I must vigorously object to certain provisions that would unconstitutionally attempt to delegate to the Comptroller General of the United States, an officer of Congress, the power to perform duties and responsibilities that in our constitutional system may be performed only by officials of the executive branch.145

142 5 Wkly. Comp. Pres. Doc. 1434 (August 15, 1979).

143 17 Wkly. Comp. Pres. Doc. 1428 (December 29, 1981). Also see Statement on signing International Security and Foreign Assistance bills on the same day, Id. at 1424-25.

17 Wkly. Comp. Pres. Doc. 1111-12 (October 9, 1981).

145 20 Wkly. Comp. Pres. Doc. 1037 (July 18, 1984).

In issuing implementing regulations in late 1984, GAO set forth procedures for awarding attorney fees from agency funds to contractors who successfully protest a bid and requiring agencies to postpone contract awards if a protest is pending at GAO. In OMB Bulletin 84-5, dated December 17, 1984, regarding "Procedures Governing Implementation of Certain Unconstitutional Provisions of the Competition in Contracting Act of 1984," agency procurement officials were instructed to ignore the GAO regulations "pending judicial resolution of the matter." A federal district court upheld the statute and oral argument has been heard in the Third Circuit. 146

THE ALTERNATIVE OF IMPOUNDMENT

The term "impoundment" has been used broadly throughout history. Any restrictive action taken by a President during budget execution might be viewed as an impoundment. Efforts have been made to distinguish between various types of impoundments.147 A major distinction is between military and domestic impoundments. Impoundments by Presidents Franklin Roosevelt through John Kennedy tended to be directed at military programs. Although President Johnson for a time attempted a retrenchment of domestic programs, it was not until the Nixon Administration that domestic programs bore the full brunt of impoundment.148 President Carter sought impoundments primarily in the defense sphere, while the rescissions proposed by President Reagan have mainly affected domestic programs.

Another distinction used in analyzing impoundment actions looks to the legal justification for withholding funds. For example, constitutional justifications, particularly the Commander-in-Chief clause, have been cited in support of particular actions. A variety of statutory provisions in existence before 1974 allowed or directed the President to withhold funds in certain circumstances. The distinction of greatest relevance in comparing retrenchment through executive impoundment are actions routine in nature versus those of a policy-making dimension. As former House Appropriations Chairman Mahon observed, "Economy is one thing, and the abandonment of a policy and program of the Congress another thing."

" 149

Impoundments before 1968

In providing an historical overview of impoundment it is usual to begin in 1803, when President Jefferson withheld $50,000 for gunboats approved by Congress.150 Upon closer examination the action

146 Ameron v. U.S. Army Corps of Engineers, 607 F. Supp. 962 (D. N.J. 1985) and 610 F. Supp. 750 (D. N.J. 1985).

147 The distinctions highlighted here represent an adaptation of a format devised previously, which identified four types of impoundments: “(1) routine actions taken for purposes of efficient management, (2) withholdings that have statutory support, (3) withholdings that depend on constitutional arguments, particularly the Commander-in-Chief clause, and (4) the impoundment of domestic funds as part of policy-making and priority-setting by the Administration." Fisher, Presidential Spending Power, at 148.

148 Fisher, Constitutional Conflicts between Congress and the President, 156, 236-37. 149 Fisher, Presidential Spending Power, at 148.

150 For example, see Stanton, supra note 11, at 207.

by Jefferson was in the nature of a routine postponement of spending, dictated by changing circumstances. Following the Louisiana Purchase the urgency of acquiring gunboats receded, so Jefferson instead took some time to review various models and then informed Congress a year later that he was ready to proceed with the program.

151

Some other actions by Presidents in the 1800's resulting in the withholding of funds for certain public works projects. President Grant, in 1976, permanently suspended part of the funding for rivers and harbors. In addition to objecting that some of the projects covered by the appropriation "were in no sense national," he also justified the impoundment due to revenue deficiencies and the need for retrenchment.152 On the basis of instructions from President Grant, the Secretary of War and the Chief of Staff of the Army Corps of Engineers refused to obligate $2.7 million of the $5 million appropriated. In response to a House resolution questioning the legal authority for the impoundment, the Secretary of War stated "that the language of the appropriations act was 'in no way mandatory' and that it was not fiscally practical or legally appropriate for the President's discretion to be otherwise limited than by the 'interests of the public service' and the 'condition of the Treasury.'" Apparently Congress chose to take no further action.

President Franklin Roosevelt used impoundment authority more extensively than his predecessors when he responded to the challenges of economic depression and then war. Some protests developed in Congress by the 1940's, when Roosevelt's Budget Director Ordered impoundments of amounts ranging from $1.6 million to $95 million which had been appropriated for the Civilian Conservation Corps' surplus labor force, civilian pilot training projects, the Surplus Marketing Corporation and various civil and military efforts which the War Department could not complete because the projects did not have the requisite priority rating to obtain scarce resources.

153

But the greatest controversy over impoundment activity in the 1940's again involved public works projects. Of the various impoundments carried out by President Roosevelt, "The public cry and political fighting were greatest, though, when funds appropriated for a flood control reservoir at Markham Ferry, Oklahoma, and a flood control levee on the Arkansas River at Tulsa were impounded." 154 Such impoundments particulary resemble the impact of an item veto applied to specific projects.

Another impoundment dispute during this period involved the Kings River Project in the Central River Valley of California. Kings River offers an especially interesting case of a public works project funded by the Congress but unwanted by the President, since it also entailed feuding within the Executive Branch between the Corps of Engineers and the Bureau of Reclamation, each of which sought to control it. President Roosevelt ordered direct review by himself and the Budget Director before allocation of the funds by the Secretary of War might occur. The dispute continued into the Truman Administration:

151 Fisher, Presidential Spending Power, at 150. 152 Stanton, "History and Practice," at 208-09.

153 Id. at 212.

154 Id. at 212.