Pro spending resides exclusively in the President. On the contrary, Congress has ample means at its disposal to enforce its spending priorities through the political process. tests of "usurpation" are being voiced by some in the current debate. Surely such protests are hyperbole. The modest power not to spend money is not the power of a man on horseback. 6. Question: You further question the power of Congress to "legislate against impoundment even in the domestic area when to do so results in substantially increasing the rate of inflation (page 661 of the transcript)." What legal authority can you cite for that assertion? Answer: It should be stressed at the outset that the President's power to impound to combat inflationary pressures represents an important limitation on his impounding authority. The principal legal support for this authority is found in the historic practice of Presidents of both parties, which can properly be regarded as a practical interpretation of the Constitution. As summarized in the answer to Question 4, Presidents since Franklin Roosevelt have, on a regular basis, impounded funds in foreign and domestic programs in efforts to control inflation. We have, then, an established Presidential practice "Alpractice of at least twenty years' duration while not absolutely binding on the judicial Numerous Supreme Court decisions recognize that the sanction of history goes far to establish the legitimacy of a practice that might have been questioned as an original matter. See, e.g., United States v. Midwest Oil Co., 236 U.S. 459, 472-473 (1915). Of course, cases are legion which accord great weight to an established Executive interpretation of an ambiguous statute. See, e.g., Boesche v. Udall, 373 U.S. 472, 483 (1963). But as Justice Frankfurter observed in Inland Waterways Corp. v. Young, 309 U.S. 517, 524-525 (1940), "[e]ven constitutional powers, when the text is doubtful, may be established by usage." The .doctrine illustrates the essential truth of Holmes' wellknown dictum--"A page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921). Article II vests "executive Power" in the President. And Congress may not, by the aggregate effect of its enactments, deprive him of substantial discretion to refrain from spending, where restraint is necessary to prevent ruinous inflation. I described in my prepared statement the functional deficiencies of the Congress in adequately checking inflationary pressures. Given these intractable realities, and reading the Constitution as a living document--not a suicide pact--the President's "executive Power" It is generally conceded that the President has sub stantial authority to impound funds in the areas of defe and foreign relations. See Question 1. It must be reco nized, moreover, that galloping domestic inflation may i pinge significantly upon the President's responsibilities Commander-in-Chief, and as the Nation's representative i foreign relations. Domestic inflation dilutes the effect ness of the defense dollar, and aggravates a host of dif cult and interrelated foreign problems, such as our balar of payments. This is not to argue that the President's a thority to impound domestic program money flows directly from his constitutional powers in the military and foreig affairs areas. It is to suggest, however, that these pow may not be properly viewed in isolation. Their exercise profoundly affected by domestic inflation, and they there fore lend support to his constitutional authority to alle inflation through impounding money for domestic programs. Mindful of John Marshall's admonition--"We must never forg that it is a constitution we are expounding," Mc Culloch v Maryland, 4 Wheat. 316, 407 (1819)--the Supreme Court has repeatedly reaffirmed the principle that constitutionally granted powers must be read with reference to the overall intention of the Framers and the practical needs of govern ment. See, e.g., Katzenbach v. McClung, 379 U.S. 294 (1964); Wickard v. Filburn, 317 U.S. 111 (1942); Currin v. Wallace, 306 U.S. 1 (1939). 7. Question: Does the Department of Justice maintain that the President's "budgetary duties" derive from the Constitution (page 661 of the transcript)? If so, from what provision of the Constitution? If not, then they are statutory. Answer: Section 1 of Article II provides that "the executive Bower shall be vested in a President of the United States of America." This provision is not a mere summary description of the Office of the President, nor are the subsequent grants of power in sections 2 and 3 an exhaustive delineation of the scope of the powers of the President. Rather, the provision constitutes a positive grant of comprehensive executive powers. Four years after the ratification of the Constitution, Alexander Hamilton interpreted the executive power clause as a grant of all the executive powers of which the Government is capable: It would not consist with the rules of sound construction, to consider this enumeration of particular authorities [in the succeeding sections of Article II] as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations The difficulty of a complete enumeration of all the cases of executive authority, would naturally dictate the use of general terms, and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of expression employed in the constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the legislative powers of the government, the expressions are, "All legislative powers herein granted shall be vested in a congress of the United States. In that The enumeration ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government. The general doctrine of our Constitution then (Emphasis as in original). Although, as I have stated above, impounding actions usually present non-justiciable issues, Hamilton's broad interpretation of the executive power clause has been confirmed by the Supreme Court in other contexts on several occasions. In Myers v. United States, 272 U.S. 52, 118 (1926), Chief Justice Taft, speaking for the Court, explicitly adopted Hamilton's construction of Article II: "The executive power was given in general terms, And, in In re Neagle, 135 U.S. 1 (1890), the Supreme Court held that the President's duty to see that the laws are faithfully executed is not limited "to the enforcement of acts of Congress or of treaties of the United States according to their express terms," but includes "the rights, duties and obligations growing out of the Constitution itself, our international relations and all the protection implied in the nature of the Government under the Constitu |