Impoundment of Funds

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IMPOUNDMENT OF FUNDS

Presidents from time to time, and especially beginning with the regime of franklin d. roosevelt, have asserted a right not to execute the laws or parts thereof, by a decision to "impound" the funds provided by Congress for the effectuation of the law. In effect, this would be an exercise of an item veto power. There is no warrant in the Constitution for the exercise of the power of impoundment. The history of the veto provision in the constitutional convention of 1787 makes clear that the Founders were wary of any veto authority, no less one that would allow the President to rewrite the laws of Congress to suit his predilections. Instead, the Constitution clearly requires that the President "take Care that the Laws be faithfully executed." Only if the provisions of Article II vesting the "executive power" are read to create implicit authority in the President to do as he pleases—what Arthur Schlesinger, Jr., calls a "plebiscitary" presidency—can the impoundment authority be deemed a constitutional one.

This is not to say that a President may not be authorized to exercise the impoundment power. But that authority must derive from legislation and not from the Constitution. Where Congress has mandated the expenditure of funds in support of a legislative program, the President has no choice but to effectuate Congress's will. But legislation may explicitly create discretion in the executive branch as to whether programs are to be carried out in whole or in part. And the courts have suggested that legislation may imply that such presidential power exists. Arguments have also been made that certain general statutes such as those ordering the executive to choose the most economic means of enforcement of the laws, or putting ceilings on the national debt, create a legislative warrant for presidential impoundment. There is little merit in the proposals that these statutes create a general statutory authority for the President to pick and choose among congressional programs.

The President has a veto power. If it is used successfully, the congressional program need not be effected for it is not the law. If the veto be used unsuccessfully, however, it is clear that Congress has mandated the program and it is Congress's will, not the President's, that makes the law of the land. Although there is no item veto, no restriction exists on the veto message explaining that the veto was invoked in response to a particular item in the legislation. If Congress overrides the veto, it will be clear that the portion found objectionable by the President was found desirable by the Congress.

After particularly egregious efforts by President richard m. nixon to throttle congressional legislation through "impoundment," the congressional budget and impoundment control act was enacted (1974). This statute requires the President to inform Congress if he proposes to rescind or defer appropriations. There can be no rescission unless Congress acting through both houses concurs within forty-five days. A deferral can be invalidated by a resolution of disapproval by one house but is valid unless disapproved. The statute is thorny with constitutional issues, but both the legislators and the executive seem willing to accept it as an appropriate accommodation of their respective interests.

The question whether a President may refuse to enforce a law that he deems unconstitutional is not really an "impoundment" question. That issue was mooted but not resolved in the impeachment and trial of President andrew johnson. Clearly the President can challenge or refuse to defend in the courts any legislation he finds unconstitutional.

Philip B. Kurland
(1986)