Senate in foreign affairs matters (Article II, § 2),

Congress has certain foreign affairs powers spelled ou Article I, section 8 of the Constitution.

Congress is

the authority to levy duties, to regulate commerce wit eign nations, to define and punish piracy and felonies mitted on the high seas and violations of the "Law of and to declare war. As in the defense area, the Const envisions divided responsibility between the Congress President in matters of foreign affairs. As a matter tice, the President's powers in this area have been su particularly in negotiating treaties and other interna agreements. See generally, Corwin, The President: Off and Powers, 1787-1957, 170 et seq. (1957). In this resp at least, the Supreme Court has recognized this broad ra of Executive authority. In United States v. Curtiss-W1 Export Corp., 299 U.S. 304 (1936), the Court sustained power of the President to prohibit arms sales to countr engaged in armed conflict. The President had acted pur to a joint resolution of Congress. However, the Court at pages 319-320 of its opinion stressed the unique and

partially exclusive role of the President in conducting foreign affairs.

Curtiss-Wright has been cited in support of the view

that the President would not be bound by a congressional

mandate prohibiting impounding of funds in the foreign affairs area. See the statements of former Assistant Attorney General Rehnquist before your Subcommittee in 1971, Hearings, at 235, 248-49. I concur in that view.

2. Question: With respect to the foregoing, is it the position of the Department of Justice that the President's "substantial authority" in the designated areas supersedes the power of Congress under Article I of the Constitution?

Answer: The impounding authority of the President does not "supersede" any power of the Congress under Article I of the Constitution. As indicated in the answer to Question 1, the Constitution envisions a system of divided responsibility between the Congress and the President in both the defense and foreign affairs areas. Because no express constitutional provision deals with the question of impounding, the somewhat ambiguous spheres of authority between the legislative and executive branches must be derived from the practice of past Presidents in dealing with the Congress, and the practical necessities of providing for the nation's defense and carrying out its foreign policy.

3. Question: Does not the "necessary and proper" clause of Article I, section 8 of the Constitution give Congress power to make laws governing the other departments, including the Executive? If so, can there be any doubt that a clearly mandated appropriation bill would be binding on the Executive, whether in domestic or foreign affairs?

Answer: In Kansas v. Colorado, 206 U.S. 46, 88 (1907), the Supreme Court rejected the notion that the necessary and prope: clause is a "delegation of a new and independent Power." In

the Congress the "power to make laws governing the oth

partments."

4. Question: You stated in your testimony that S. 373 "reverse 170 years of Presidential practice." Please s in outline form the number of impoundments by each Chie tive during that 170 year period and the amount of doll each fiscal year so impounded. To facilitate your answ may wish to cite relevant literature that compiles thos Answer: As indicated in my testimony, under the sweepi inition of impounding included in section 3 of S. 373, many impounding actions occur each year. A determinati the number of such actions and the amounts of funds impo for each of the last 170 years is impossible. Neverthel insofar as your question requests documentation for my s ment that S. 373 "seeks to reverse 170 years of Presiden practice," I believe that I can be responsive.

The figure of "170 years" assumes that the initial i pounding action was taken by President Jefferson in 1803 described in my prepared statement. If an impounding act is understood as any decision to withhold or delay the ex ture of funds, Jefferson's action in connection with the boats was not the first impounding action by the Executiv branch. Budgetary decisions involving the rate of spendi are an inherent part of administering appropriated funds. This type of impounding authority certainly has been exer by all Presidents beginning with George Washington. Indee

the need for Executive spending discretion was in some respects greater during earlier periods, because appropriation acts contained only the most general guidelines as to how funds were to be spent. See Corwin, The President, 127-128; testimony of former Assistant Attorney General Rehnquist, in Hearings, at 233.

For our purposes, one of the most significant nineteenth century impoundings occurred during the administration of President Grant in 1876. In signing into law a bill appropriating funds for harbor and river improvements (19 Stat. 132), President Grant sent a special message to the House of Representatives announcing his intention not to spend the full amounts appropriated under the act. He expressed opposition to certain appropriations for "works of purely private or local interest, in no sense national." Moreover, the statement indicated that the withholding of expenditures was necessary in order to maintain the nation's fiscal integrity:

There is very great necessity for economy of expenditures at this time, growing out of the loss of revenue likely to arise from a deficiency of appropriations to insure thorough collection of same It may be a question to consider whether any expenditure can be authorized under the river and harbor appropriation further than to protect works already done and paid for. 7 Richardson, Messages and Papers of the Presidents 377 (1898).

Acting pursuant to the President's instructions, the Secre

tary of War and the Chief of the Army Corps of Engineers took action resulting in an allotment of only $2,332,850 of the $5,015,000 which had been appropriated by the Congress. Doc. No. 23,. 44th Cong., 2d Sess. 56 (1876). The House of

Ex.

Representatives reacted by passing a resolution requesting

that the President indicate the legal basis for his action. In responding to this request, Secretary of War Cameron wrote: I would suggest that the law and authority are found in the act itself, which appropriates certain sums to be expended for certain purposes, under the direction of the Secretary of War, but is in no way mandatory upon him to expend the full amount; and a moment's reflection will show that it is not feasible to so limit his discretion, since change of plan, decrease of cost of material and labor, or any one of many other contingencies might leave a portion of the appropriation unexpended . The executive officer who is charged with these expenditures is bound by his regard for the interests of the public service, but his discretion is not limited by any express provision of law.

The exercise of this discretion in the present
instance has been influenced by the condition of
the Treasury, and the nature of the appropriations
for other public works of quite as much importance
as the river and harbor improvements

President Grant's impounding action reveals that then, as now, the President may be obliged to limit total federal spending in order to maintain fiscal integrity, even where in so doing he fails to make full or immediate use of funds appropriated by the Congress.

Secretary Cameron's letter also indicates that the withholding of funds appropriated under the River and Harbor Act was not a unique occurrence during the Grant Administration,

or other nineteenth century administrations.

unexpended funds, the Secretary noted:

Speaking of

There are now three or four such credits in the Treasury where they have remained for several years, and one or two cases in which appropriations for specific improvements have never been drawn upon at all. Id.