Impoundment

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Impoundment appears to be a uniquely American practice that until recently has escaped public notice. It occurs when the President of the United States refuses to spend certain moneys appropriated by the Congress in a given fiscal year. Only eight chief executives are known to have impounded, two in the nineteenth century and, since 1941, every contemporary President from I’ranklin Roosevelt to Richard Nixon.

In the last year, however, the President’s authority to withhold allocated funds has been vigorously challenged in Congress, in tlie federal courts, and in the press, raising substantial constitutional questions about the executive’s spending power and his relationship to the legislative branch of government. Ls the President, for example, required to spend the money Congress allocates, or is he merely given permission to spend when and if he chooses? If he accepts all appropriations as fully mandated, does tie then compromise the independence of the executive branch and make the President a mere custodian of the law? IJ he chooses not to spend, is he then flouting the very laws he as chief executive is sworn to uphold?

To date there are no clear-cut answers. Although the lower federal courts have consistently held that appropriations are binding (i.e., the money must be spent), the Supreme Court has yet to rule. And while many congressmen insist that the President has no discretionary power over spending, supporters of impoundment cite broad constitutional and statutory authority granting that right.

To shed what light we can on the matter we present here a record of impoundments from the past.

1803.

Ironically, the chief precedent now claimed for impoundment was established by Thomas Jefferson, a foe of big government in general and of a powerful executive in particular. For most of his administration Jefferson held firmly to the belief—strongly supported by his Secretary of the Treasury, Albert Gallatin—that Congress, not the President, should dictate the expenditure of funds. But in 1803 events along the Mississippi forced him to deviate momentarily from that position.

In late October, 1802, the port of New Orleans was summarily closed to American trade. In response to this crisis Jefferson dispatched James Madison to France to negotiate a settlement that, if possible, would include the purchase of the port, but Congress chose to anticipate war and immediately appropriated fifty thousand dollars for the construction of fifteen gunboats. Jefferson was perhaps the nation’s leading advocate of a gunboat navy (as opposed to costly ships of the line) and for some time had been pressing for such a fleet. Nonetheless, for the duration of the year he refused to spend the money, because he feared Madison’s secret talks with Napoleon might be jeopardized and because he was convinced that the boat designs then available were too expensive and too unwieldy to be effective.

Before a constitutional conflict over the matter could develop, the Ixmisiana Purchase eliminated the trouble with France and, as Jefferson put it to Congress, “rendered an immediate execution of [the] law unnecessary. …” Now, he suggested, the easing of tensions made it possible to search prudently for the most versatile and economical boats. By the end of 1804 satisfactory models had been found, and Jefferson released the funds.

Strictly speaking, Jefferson’s “impoundment” was only a deferral, and it differs in a number of key ways from later practice: (1) in private meetings and public statements Jefferson kept Congress informed as to what he was doing; (2) he was not opposed in principle to the appropriation; (3) the release of funds came through executive initiative, not congressional pressure; and (4) Jefferson did not defer spending on any other occasion.

1876.

Ulysses S. Grant was the first President after Jefferson and the last before Franklin Roosevelt to impound. In 1876 he challenged certain portions of the heavily padded Rivers and Harbors bill as inimical to the national interest. At the same time he established what from a modern President’s point of view is the argument at the heart of the impoundment issue.

As Grant saw it, the President was at the mercy of Congress in appropriation bills because the Constitution does not provide the executive with an item veto. As chief executive officer he must approve or veto in its entirety any measure passed by Congress. He may not pick and choose among the several items in a bill; he must accept everything or nothing. As a result he has little control over special-interest riders—the so-called pork-barrel legislation—that Congress frequently attaches to money bills. The President may not directly eliminate individual projects or programs he thinks to be extravagant, inflationary, or illegal except by vetoing the entire appropriation measure.

Grant first called attention to the problem in 1873, and, like him, every President since has urged the passage of a constitutional amendment creating an item veto in appropriations, subject to the overriding power of Congress. Since 1873 more than a hundred separate resolutions to that effect have been introduced in the House and Senate; all of them have died in committee.