Изображения страниц
PDF
EPUB

When Congress funded the project in 1946, President Truman announced that he would submit his own plan for developing water resources in that area. He then impounded the funds pending a determination of prospective costs. In February 1947, after submitting his report to Congress, Truman released the money.

155

There have also been noteworthy instances where Presidents have impounded funds approved for military programs. For example, in 1949 President Truman signed a bill in which Congress had voted to increase the President's request for Air Force funding to cover an additional ten groups, but announced that he was directing the Secretary of Defense to place the unwanted $735 million in reserve. In this instance, the Senate apparently agreed with the President's position but went along with the House version funding additional groups, because adjournment was imminent and funds were needed to meet the military payroll. Neither of the Appropriations Committee Chairmen questioned this impoundment.156 Another military impoundment generated controversy in the Kennedy Administration. In 1961 the President requested $200 million for the development of the B-70 bomber, but Congress appropriated $380 million. Secretary of Defense McNamara refused to release the $180 million in unwanted funds. The following year Chairman Vinson of the House Armed Services Committee sought to incorporate mandatory language in the military authorization bill, directing the Secretary of the Air Force to spend not less than $491 million toward the production of the aircraft in fiscal 1963, a figure $320 million above the Administration's budget request. The language sought by Vinson was ultimately rejected, although a face-saving alternative was adopted. President Kennedy objected to the Vinson language on separation-of-powers grounds, and others in the military sided with McNamara on strategic grounds. There was also opposition to the Vinson plan from within Congress, particularly from the Appropriations Committees and Chairman Mahon who noted the impracticality of directing the President to spend money before it was appropriated.157

The impoundment actions taken by President Truman with regard to the Air Force funds in 1949 and by President Kennedy with the B-70 bomber both provide functional equivalents to the exercise of an item veto. In effect, both Presidents rejected increases over the Administration-requested amounts for a particular component of the military program, despite approval of the larger figure by Congress, without resorting to a veto of the entire appropriations bill.

President Johnson signed the Omnibus Rivers and Harbors bill in 1965 while objecting to a committee-veto provision in one section. Funds for the small watershed projects, subject to the committee veto, were not released. In an effort to resolve the impasse, early in 1967 the Secretary of the Army forwarded a proposed amendment to Congress, which would have deleted the committeeapproval provision and substituted a report-and-wait provision. Congress refused to enact the amendment, and funds for small wa

155 Fisher, Presidential Spending Power, at 166.

156 Id. at 163.

157 Id. at 163-64.

tershed projects remained impounded. However, President Nixon instructed his Secretary of Agriculture to release the funds. 158

President Johnson also announced his intention to withhold appropriations exceeding his budget in the fall of 1966. After the November elections the President projected a $5.3 billion reduction in Federal programs, which would require cutting more than $3 billion in the remainder of the fiscal year. But the President began releasing the funds early in 1967, in response to severe criticism from the states. 159 In the terminology of the 1974 Impoundment Control Act, President Johnson's efforts to withhold funds for domestic programs amounted to a temporary postponement, or deferral.

Conflicts during the Nixon years

In contrast, President Nixon attempted to cancel funds for domestic programs on a scale "unprecedented in scope and severity." 160 Through impoundment of the recission variety (but without congressional approval) the President sought to rearrange national priorities and alter programs previously approved by Congress. During the first three years of the Nixon Administration the President's impoundment actions were facilitated by the imposition of spending ceilings by Congress which provided additional statutory authority for selective withholding of funds.

Spending controls were not an entirely new development. For example, the omnibus appropriations bill of 1950 directed the President to cut expenditures by not less than $550 million with the only guideline being that national defense was not to be impaired. To comply with this statutory mandate, President Truman placed $572 million in reserve, including $343 million in appropriations, $119 million in contract authority, and $110 million in borrowing authority authorized from the Treasury., 161

Congress imposed spending limitations or ceilings four years in a row, from 1967 through 1970. The 1967 provision during the Johnson Administration, enacted in Public Law 90-218, was a spending limitation. Instead of imposing a ceiling on total expenditures, it required certain percentage cuts from the President's budget. Congress called for a spending cut of $4.3 billion; legislative action trimmed $1.8 billion, leaving $2.5 billion to be cut by the administration. 162

The Nixon Administration had recourse to spending ceilings for fiscal year 1969, 1970, and 1971. The Revenue and Expenditure Control Act of 1968 (P.L. 90-364) imposed a ceiling of $180.1 billion which required a $6 billion cut in the 1969 budget. The President was authorized to withhold from obligations "such amounts as may be necessary to effectuate" the savings. Despite cuts of $8.4 billion in programs subject to the ceiling, the new reduction amounted to only $1.5 billion because of unexpectedly large overruns in exempted areas, sixty percent of which was accounted for by Vietnam

158 Id. at 166.

159 Id. at 167. 160 Id. at 176.

161 Id. at 152.

162 Id. at 152-53; and Schick, Congress and Money, at 32-35.

costs and interest on the debt. Total budget outlays of $184.6 billion exceeded the "ceiling" by $3.5 billion. 163

The Second Supplemental Appropriations Act of 1969 (P.L. 91-74) stipulated a spending ceiling for fiscal year 1970 of $191.9 billion. Although no specific exemptions were allowed this time, the President received authority to increase the ceiling by up to $2 billion to cover certain uncontrollable items such as interest and entitlement payments, and Congress itself retained the option to add funds. Due primarily to an increase beyond the $2 billion allowed for uncontrollables, Congress had to raise the limitation on 1970 outlays in P.L. 91-305, with actual outlays for fiscal 1970 coming to $196.6 billion, again exceeding the initial ceiling. Congress adopted still another spending ceiling the following year, limiting fiscal 1971 outlays to $200.8 billion, but actual outlays exceeded the ceiling by more than $10 billion, due both to Congressional actions and larger than projected increases in uncontrollables.

While the spending ceilings enacted from 1967 to 1970 were relatively unsuccessful in achieving the targeted reductions, they did provide statutory authority for the exercise of greater discretion by Presidents Johnson and Nixon in withholding funds previously appropriated by Congress. These spending ceilings represent a prelude to impoundments by the Nixon Administration and to the enactment of new controls in the 1974 law. Chairman Mahon of the House Appropriations Committee had cautioned in 1967 that ceilings could be exploited by the President to justify impoundments.164 Congress refused to adopt a ceiling in 1971, largely in retaliation to such actions. Congressman Joe L. Evins told an executive official that Congress did not want to give the Nixon Administration "a flexible ceiling which you could use as a tool to freeze and impound funds as you did in the past."

" 165

Detailed case studies of impoundments under President Nixon exist elsewhere. 166 Some of the Nixon impoundments followed past patterns. For example, the President impounded funds for unwanted public works projects. In signing a public works appropriations bill, the President announced his intention "to minimize the impact of these inflationary and unnecessary appropriations, including the deferment of the proposed starts and the withholding of funds." The Administration implemented all the projects included in the President's budget while systematically deferring the funding for each project added by Congress.167

Several of the Nixon impoundments were justified on grounds of fiscal economy, with reference to the congressionally imposed spending ceilings. The actions tended to represent more a redistribution than a reduction of funding. In short, Nixon attempted to eliminate previously established Democratic programs and to install new Republican ones, using the impoundment tool as a means

163 This discussion of spending ceilings borrows heavily from Schick, Congress and Money, at 35-41; and Fisher, President and Congress 107-110 (1972).

164 Cited by Schick, Congress and Money, at 39.

165 Cited by Fisher, Presidential Spending Power, at 153. In 1972 President Nixon requested a spending limit of $250 billion for fiscal 1973, but the House and Senate could not agree on a formula.

[blocks in formation]

to reorder the national priorities. For example, in the spring of 1971 the Administration reported the withholding of some $12 billion, mostly for funding highway and urban programs. However, it was made clear that the Administration supported Federal spending for these programs via a consolidated revenue-sharing approach, while opposing the existing categorical grants-in-aid programs.168

During congressional testimony later in 1971 Secretary of Housing and Urban Development George Romney explicitly announced that funds were being withheld from various urban programs including water and sewer grants, open space grants, and public facility loans in anticipation of enactment of the President's revenue sharing proposal. Withholding money in anticipation of Congressional action on a replacement program represented a new type of impoundment: "It gave precedence to an Administration recommendation, not yet enacted, over a public law already on the books and funded by Congress." In 1974 a District Court held that the HUD Secretary had no statutory authority to suspend an entire program. A few weeks later Congress substituted block grants for categorical programs by enacting the Housing and Community Development Act of 1974.169

Following the reelection victory in November of 1972, the Nixon Administration announced major new impoundment actions, several of which were directed at farm programs. For example, in December the Rural Environmental Assistance Program ($225.5 million) and the Water Bank Program ($10 million) were terminated via impoundment. Loan programs of the Farmers Home Administration and the Rural Electrification Administration met similar fates, and in January of 1973 the Department of Agriculture announced the termination of planning and development grants in the water and waste disposal programs of Farmers Home Administration. 170

Although there were variations in the justifications cited for the respective terminations by the Department of Agriculture, a recurring theme was that the appropriations for each were permissive rather than mandatory. This perspective took advantage of discretionary language (which administrators had wanted for reasons of program flexibility), to eliminate programs in their entirety. As the Comptroller General later observed:

We do not believe it follows that by employing permissive language the Congress envisions the bulk of appropriation acts as carrying with them the seeds of their own destruction in the form of an unrestricted license to impounds."

171

Perhaps the most conspicuous Nixon impoundment involved the Clean Water Act. The Federal Water Pollution Control Act Amendments of 1972 were enacted by means of congressional override of the President's veto. Undeterred, President Nixon proceeded to impound half of the $18 billion provided for the intensive three-year program by instructing the head of the Environmental Protection Agency to withhold allotments from the states amounts to $3 bil

168 Id. at 169-170. 169 Id. at 192-93. 170 Id. at 177-184. 171 Cited id. at 178.

lion each in fiscal 1973, 1974, and 1975. While there was some discretion provided by the statutory language, the degree of flexibility at the allotment stage as well as the extent of discretionary authority accorded the President in executing the law were at issue. Legal challenges eventually reached the Supreme Court, which held in 1975 that the Clean Water Act required full allotment. 172 However, the Administration largely achieved its purpose by stretching out the program during the two years of litigation. In addition,

The Court dealt with the issue only in terms of statutory construction, not of inherent constitutional authority to impound. The language of the Clean Water Act and its legislative history were so peculiar that the Court's decision has scant bearing on other impoundment disputes. 173

The Nixon exploitation of the impoundment device, despite the questionable legality of certain actions, at least demonstrated the versatility of the tool as a substitute for item-veto authority. During the impoundment conflicts of the Nixon years, Congress responded with ad hoc efforts to restore individual programs as well as with gradually more restrictive appropriations language. The principal response was enactment of the Impoundment Control Act as Title X of the 1974 Budget Act.

The Impoundment Control Act of 1974

The legislative decision to designate two types of impoundments, deferrals and rescissions, reflected a key compromise in conference. Both the House and Senate passed impoundment control bills in the 93rd Congress, but the conference remained at an impasse. The House supported a version giving Congress sixty days in which to review and possibly disapprove by one-House veto an impoundment, while the Senate-passed bill approved a stronger oversight mechanism, requiring congressional approval of a proposed impoundment within sixty days.

This deadlock was broken during conference action on the budget reform legislation, when it was decided to add a separate title dealing with impoundment. Further, the differing approaches of the House and Senate were reconciled by designating two types of impoundments: deferral (governed by the House-supported one-House veto provision) and rescission (governed by the Senate-passed approval-by-both-Houses requirement).174 There has been some conformity of the deferral-rescission distinction to the routine-administrative compared with policy-making impoundment: "Most deferrals have been routine administrative actions. Rescissions, however, are more likely to have policy motives." 175

[ocr errors]

Not surprisingly, impoundments via deferral have met with greater success than rescissions. According to one calculation, during the first five years under the 1974 act Congress took action to disapprove only 10 percent of the deferral requests, while 65 percent of the rescissions were disallowed because of lack of congressional action to approve them.176

[blocks in formation]
« ПредыдущаяПродолжить »