Date: 1981-09-29
Speaker: ROBERT C. BYRD (democrat)
Chamber: S

Mr. President. executive impoundment of appropriated funds is Indeed a potent weapon to curb Federal spending. By Impounding large portions of the funds approved by the Congress. the Presidentcan do far more than merely reduce the projected budget deficit. The power to impound funds carries with it the power to reorder national prioritiesto substitute executive policies for those established by the Congress. Such an alteration of our fundamental constitutional framework must be vigilantly guarded against. This is not the first time that the extent of Presidential power to Impound funds has been debated by the Congress. The impoundment of funds is not a new practice. Some historians trace it as far back as 1803 when Thomas Jefferson refused to spend funds appropriated for gunboats. The controversy came into sharp focus during the Nixon administration. when President Nixon tried to Impound $18 billion from programs he wanted to terminate or drastically curtail on policy grounds. His supporters attempted to justify such action on the grounds that the state of the economy demanded it. But Congress refused then to submit to an imperial presidency and It is my belief that It will refuse to bow to such pressure now. In a successful challenge to President Nixons assertion of authority to set Federal spending priorities. the Senate and the House both passed bills in 1973 to curtail the Presidents power to Impound funds. Subsequently. impoundment control provisions were included in the Budget Control and Impoundment Act as part of the wholesale effort to reform congressional budget procedures. I was deeply involved in the genesis of the legislation which governs congressional budget deliberations today. It is astonishing to note that 62 Members who serve in the Senate today were not elected until after that historic debate. There is a certain institutional perspective to be gained from having participated in that legislativeexecutive battlea perspective which may not be fully appreciated by the Senator from Colorado. IAt that time. I testified before Joint hearings of the Judiciary and Government Operations Committees on the necessity for impoundment control legislation. In 1974. as now. bigger and bigger deficits and a skyrocketing national debt had led to public outrage and a demand for immediate fiscal restraint. Then. as now. fiscal responsibility had not always guided every congressional spendinig decision. But I stand by what I said at that time as to the constitutionality of broadly defined presidential Impoundment authority: By Impounding appropriated funds. the President is able to modify. reshape or nullify completely laws passed by the legislative branch. thereby making legislative policy through executive power. Such an illegal exercise of power of his office flies directly In the face of constitutional provisions to the contrary. An amendment similar to that offered by the Senator from Colorado has been presented to the Senate before. and it was soundly rejected. During debate on S. 373. the Senate version of Impoundment control legislation. Senator ROTH propose.d an amendment which would have left pesintial Impoundments in effect unless Congress. within 60 days by concurrent resolution. disapproved the Presidents action. The Roth amendment was defeated by a vote of 30 to 58. The refusal of Congress to permit the President to dictate Federal spending priorities is based on the strongest possible constitutional and policy grounds. The proposal to authorize the President to withhold spending of appropriated funds unless vetoed by both Houses raises a pair of constitutional questions: First. whether Congress can delegate such power to the President. and second. whether Congress can reserve the power to countermand the Presidents decision by concurrent resolution. The nondelegation doctrinethat the lawmaking power of Congress cannot be delegatedis a corollary of the doctrine of separation of powers. At the heart of this fundamental principle of American constitutional law is the idea that the principal powers of governmentlawmaking. law execution. and laW~ interpretationare to be divided among three coequal branches of Goverrnent which are not Permitted to divest themselves of their powers and confer them on one of the other branches. It Is true that Congress has. from the beginning. delegated to the executive and the judiciary certain powers which the legislative could rightfully exercise itself. But the delegation of congressional authority to appropriate funds Is highly doubtful because of the constitutional mandate contained In article X. section 9 that "no money shall be drawn from the Treasury. but In consequence of appropriations made by law." The President Is constitutionally given no role in legislation. including appropriation matters. except the power to recommend "such measures as he should judge necessary and expedient" (article II. section 3) and the power to veto measures passed by the Congress (article I. section 7). He also has the responsibility to "take care that the laws be faithfully executed." Certainly the founders did not intend for the President to have any discretion when they imposed that duty upon him. An appropriation bill enacted into law Is a law as much as any other law. The President has no authority to decide which laws will be executed or to what extent they will be enforced except through his veto power. If the President determines that an appropriation bill enacted by Congress unacceptably inflates the budget. his constitutional remedy is to veto the legislation. It would seem Improbable to permit a President to veto a bill. have Congress reenact the bill over the veto. and then to find a constitutional rationale for allowing Impoundment to nullify such a law. Carried one step further. it would be even more unlikely to permit the President to impound funds appropriated throUgh congressional override of a Presidential veto. only to confront Congress with the charge of disapproving thd impoundment through a procedure such as that proposed by the pending amendment of the Senator- from Colorado. The Budget Control and Impoundment Act does authorize the President to withhold spending. but only with the concurrence of Congress. A rescissionwhich Is essentially a proposal to repeal appropriations or other spending lawsmust be released unless a rescission bill is approved by both Houses of Congress. In essence. such legislation constitutes "deappropriation" or congressional repeal of previously enacted appropriations legislation. A reversal of this procedure. requiring congressional veto of Presidential Impoundments would turn this procedure on Its head and result in the delegation of far greater discretion to the executive branch. This constitutionally suspect P~ocedure would be contrary to the very intent of the separation of Powers framework. The amendment offered by the Senator from Colorado that Is pending before the Senate also calls into question the constitutionality of the legislative veto. Despite the passage of almost 200 laws containing nearly 300 congressional veto provisions of one kind or another. questions regarding their constitutionality have yet to be resolved. Viewed as legislative acts. legislative vetoes authorize congressional action that has the effect of legislation but deny to the President the opportunity to exercise his veto power. Viewed as executive acts. congressional vetoes give Congress an extralegislative role in administering programs that Impinge on the duty of the President to execute laws. The Iffipoundment Control Act has established a workable procedure for reappraisal of congressional spending decisions. Congress has been able to prevent the President from unilaterally withholding funds and the executive branch has been able to manage the Nations financial affairs without undue restraint. This Is a balance which should not be disturbed. The Armstrong amendment is an invitation to confer upon the President unprecedented authority to impound funds without congressional approlal. No matter how the congressional veto mechanism is packaged. it is a relinquishment of the congressional prerogative to set spending priorities. The school lunch program provides a startling example of what could rebult from adoption of this amendment. The Reagan administration proposed a total cut of $1.9 billion for fiscal year 1982 spending for all child nutrition programs. The Congress enacted only $1.5 billion of these cuts in the Reconciliation Act of 1981. making the collective Judgment that schoolchildren would be irreparably harmed if deeper cuts were made. If the Armstrong -amendment is adopted. it is predictable that the President would impound the additional $400 million that Congress retained. If that occurred. the school lunch program would not be debilitated. it would simply be demolished. The Nations children would be the victims. In this case. of the new budget cutting powers of the executive branch. Mr. President. there csliu be no doubt that the control *of rvnavay deficits. soaring interest rates and doubledigit inflation Is the No. 1 domestic priority. The public generally endorses the campaign to reduce or eliminate unwanted. ineffective. and Inefficient Governmnent programs. But there is no support for the proposition that the President should be given uncontrolled discretion to dismantleprogram by program. department by departmentthe domestic functions of the Federal Government. There is also no mandate to reorder the constitutional framework which has served this Nation so well for over 200 years. Impoundment In any form holds substantial ramifications for our entire constitutional system. The carefully devised system of checks and balances would be threatened by the transfer to the executive of unbridled power to reorder Federal spending. impoundment. in the form proposed by the Senator from Colorado. would contravene not only the Constitution but our whole philosophy of government. I cannot and will not support this impoundment amendment. I urge my colleagues. on both sides of the aisle to vote to table the Armstronig amendment. Nothing less than the Integrity of the Constitution is at stake. Mr. President. I yield the floor.