September 28, 2006
Impoundment Posted by John Steele Gordon at 05:00 PM EST Joshua Zeitz writes, “When President Richard Nixon impounded federal funds that Congress had authorized and appropriated for environmental protection, his actions were correctly understood as activist. Yes, he was choosing not to spend money. But willfully ignoring appropriations that had been legally mandated was an affirmative action.”
Mr. Zeitz makes it sound as though Richard Nixon invented the concept of impoundment. He didn’t. It was, in fact, that Democratic icon Thomas Jefferson who was the first president to decline to spend a Congressional appropriation. In 1803 he informed Congress that he had not spent $50,000 appropriated for gunboats because of “the peaceful turn of events.”
Most later Presidents also impounded funds, some because the reason to spend them had, in the President’s judgment, been obviated, or because they didn’t approve of the reason, or because of budgetary considerations. In 1950 Congress even acknowledged the impoundment power of the President by explicitly authorizing the executive to take advantage of savings that were made possible by developments that occurred after an appropriation had been made.
In 1966 Lyndon Johnson impounded a whopping $5.6 billion out of a total budget of $134 billion. The funds he declined to spend included $1.1 billion in highway funds and $760 million in such congressionally beloved spending programs as agriculture, housing, and education. Congress, needless to say, was not happy, but acquiesced.
So Nixon was merely following in a long-established tradition of his predecessors, except that, characteristically perhaps, he went too far. When Congress passed the Federal Water Pollution Act in 1972, Nixon thought it too expensive and vetoed it. (He wasn’t against “environmental protection”; he opposed spending $6 billion on it as directed by the bill.) Congress, however, overrode his veto, and Nixon then impounded the $6 billion.
Nixon perhaps would have been much better advised to have signed the act and then declined to spend the money, or some of it. By vetoing the bill and then impounding the money when he was overridden, he was making a direct attack on the power of Congress to make the laws. Hearings were convened in both houses on impoundment but no law came out of them. The Supreme Court has never ruled on the constitutionality of impoundment (although lower courts have ruled against it).
In 1974, with Nixon’s Presidency in its death throes, Congress passed the Budget Control Act of 1974, which stripped the President of the power of impoundment. As I have written before, the Budget Control Act is probably the most misnamed act in Congressional history, for it totally marginalized the President as a major player in the game of budgetary politics, and the budget went out of control.
What’s needed is what almost all governors have, a line-item veto. It would make the President once more a major player. This is important because the President is the only elected official in Washington—other than the constitutionally powerless Vice President—elected by the entire country, and thus the only one in Washington without parochial interests. I’m not going to hold my breath waiting for it, however. Just witness how hard the members of Congress tried this summer and fall to prevent the public from finding out what earmarks they were behind.
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