rizing statute, and appropriations to the amount of commitments actually made are enacted later. This last spending control technique was used by President Nixon recently with respect to obligational authority provided in the Federal 3/ Water Pollution Control Act Amendments of 1972. Depending upon the particular statute involved, delegations of authority within the Executive branch, and the purp of impounding, funds may be impounded by the action of a departmental official, the Office of Management and Budget, or the President himself. For example, the recent impounding o obligational authority for water pollution control projects was accomplished, as a technical matter, by the action of Environmental Protection Agency Administrator Ruckelshaus in alloting to the States less than the full amounts authorized by the 1972 amendments. However, his action in that instance was expressly directed by the President. Most im pounding actions are taken by or at the direction of the Office of Management and Budget, subject to the President's overall supervision. Ultimately, the power--and the responsibility--to impound funds rests with the President. Historical Developments The practice of impounding funds, through various techniques and for various reasons, reaches back as far as Presi dent Jefferson, who declined to spend an appropriation for gunboats in 1803. As he stated in his annual message to the Congress- 3/ P.L. 92-500, 86 Stat. 816. A general statutory basis for impounding was first enac in the Anti-Deficiency Act of 1905.5/ Formal administra procedures for impounding were first established during Harding Administration, following enactment of the Budge and Accounting Act of 1921.6/ President Franklin Roosevelt was the first to make tensive use of impounding devices to control total gover spending, inflation, and related economic effects, parti larly during World War II. A wide variety of funded pro notably public works projects unrelated to the war effor 7/ were shelved for the duration of the war. istrations have continued the practice. President Truman impounded over 700 million dollars appro ated for expanding the Air Force partly in order to avoid Succeeding For example, in 47 1 Richardson, Messages and Papers of the Presidents, pp. 360-361. 5/ 33 Stat. 1257. ་་ 6/ 42 Stat. 20. See Fisher, "The Politics of Impounded Funds. 15 Administrative Science Quarterly 361, reproduced in Hearings, supra at 104. 7/ Fisher, op. cit. 106-107. great a strain on the domestic economy."8/ In the latter part of his Administration, President Eisenhower impounded 9/ funds for Nike-Zeus missile development. During the Kenne Administration, appropriations almost double the amount requested by the Administration for development of the B-70 These and numerous other examples of impounding by the Executive branch, particularly during the last thirty years, are contained in the 1971 hearings before this Subcommittee. Such a long-continued Executive practice, in which Congress has generally acquiesced, carries with it a strong presumptic of legality. General Principles Concerning Impounding The Constitution does not speak directly to the matter of impounding funds. The phenomena of massive government spending, mounting public debt, and heavy involvement of the national government in the management of an interdependent industrial and service economy were unknown to the Framers. Until very recently, the judicially-developed doctrines of sovereign immunity, standing, justiciability and political question have largely foreclosed judicial consideration of impounding questions. Impounding disputes, when they have arisen, have tra ditionally been resolved in the political arena, and for good reason. It has long been recognized that- The interference of the courts with the Decatur v. Paulding, 14 Pet. 497, 516 (1840). Decisions to impound inevitably involve policy judgments concerning changing national needs and highly technical predictions about their effect upon the economy. Significant impounding actions can rarely be taken to alleviate one problem, without aggravating another. These "trade-offs" involve delicate adjustments peculiarly within the competence and constitutional authority of the Executive branch. Judges do not make economic policy under our system. Nor are they technically competent to review such economic decisions. For beyond the fundamental question of legitimacy, there is a "lack of judicially discoverable and manageable standards for resolving" these essentially political questions. Baker v. Carr, 369 U.S. 186, 217 (1962). In accordance with this principle, a federal district court recently dismissed a challenge to an impounding action partly on political question grounds. 11/ Despite a few other recent Executive impounding actions now being challenged 11/ Housing Authority of San Francisco v. Department of Housing and Urban Development, Civil Action C-71-1135 OJC (N.D. Cal. 1972). in the lower federal courts, there are no controlling Supreme Court decisions in the area. General principles in the impounding area must be derived largely from past practice, certain statutory obligations of the President such as those relating to the size of the public debt and the purchasing power of the dollar, and the intractable realities of modern government under our system of separated powers. dams, Most federal statutes establishing federal spending programs are cast in discretionary language. For example, the Secretary of Agriculture "is authorized to" subsidize 12/ and the President "is authorized to" grant various kinds of foreign aid. 13/ Similarly, typical appropriation acts for the funding of previously authorized programs simply "appropriate" sums "out of money in the Treasury not otherwise appropriated" in very general terms. Absent an obviously deliberate departure from the usual statutory language, it has been traditionally assumed that such statutes do not require spending the full amounts appropriated. This is so for several reasons, the most obvious being simple economy. The President's obligation to faithfully execute the laws plainly includes an obligation to prevent waste. If Congress appropriates $100 million to develop a tank for the Army, no one would contend that the Executive branch is breaking the law if it develops the tank for 12/ 16 U.S.c. 1003, 1006a. 13/ See, e.g., 22 U.S.C. 2182(b). |