b'Presidential Authority to Impound Funds Appropriated\nfor Assistance to Federally Impacted Schools\nPublic Law 81-874 does not provide statutory authority for the Commissioner of Education in the\nexercise of his discretion to avoid applying the full sum appropriated to the entitlements of local\neducational agencies for financial assistance to federally impacted schools.\nThe President does not have the constitutional authority to direct the Commissioner of Education or the\nBureau of the Budget to impound or otherwise prevent the expenditure of funds appropriated by\nCongress to carry out the legislation for financial assistance to federally impacted schools, Public\nLaw 81-874.\n\nDecember 1, 1969\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nBUREAU OF THE BUDGET\nYou have asked us to consider whether the President may, by direction to the\nCommissioner of Education or to the Bureau of the Budget, impound or otherwise\nprevent the expenditure of funds appropriated by Congress to carry out the\nlegislation for financial assistance to federally impacted schools, Public Law 81874, 64 Stat. 1100 (1950) (codified as amended at 20 U.S.C. \xc2\xa7\xc2\xa7 236 et seq. (1964\n& Supp. IV 1965\xe2\x80\x931968), and Public Law 81-815, 64 Stat. 967 (Sept. 23, 1950)\n(codified as amended at 20 U.S.C. \xc2\xa7\xc2\xa7 631 et seq. (1964 & Supp. IV 1965\xe2\x80\x931968)).\nI.\nIn July, the House of Representatives, in adopting the Joelson Amendment to\nthe appropriations bill for the Departments of Labor and Health, Education, and\nWelfare (\xe2\x80\x9cHEW\xe2\x80\x9d) (H.R. 13111, 91st Cong. (1969)), added approximately one\nbillion dollars to the sum to be appropriated for various programs administered by\nthe Office of Education. 115 Cong. Rec. 21,688\xe2\x80\x9389 (1969). One of the largest\nincreases was in the appropriation to carry out Public Law 81-874, which was\nraised to $585 million, nearly $400 million over the figure requested by the\nAdministration and reported by the House Appropriations Committee. The\nappropriation for Public Law 81-815, on the other hand, is only $15,167,000, the\nsame as that requested by the Administration.\nThe question arises whether, assuming that the appropriations carried in the\nJoelson Amendment are not significantly reduced by the Senate, the Administration is bound to spend the money appropriated. This memorandum considers the\nsituation with respect to Public Law 81-874 and Public Law 81-815, particularly\n\n303\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nthe former. In a subsequent memorandum we shall consider the situation with\nrespect to certain of the other items in the Joelson Amendment.1\nPublic Law 81-874 authorizes financial assistance for the maintenance and\noperation of local school districts in areas where school enrollments are affected\nby federal activities. Payments are made to eligible school districts which provide\nfree public education to children who live on federal property with a parent\nemployed on federal property (section 3(a) (codified as amended at 20 U.S.C.\n\xc2\xa7 238)) and to children who either live on federal property or live with a parent\nemployed on federal property (section 3(b)); to those school districts having a\nsubstantial increase in school enrollment resulting from federal contract activities\nwith private companies (section 4 (codified as amended at 20 U.S.C. \xc2\xa7 239)); and\nto school districts when there has been a loss of tax base as a result of the acquisition of real property by the federal government (section 2 (codified as amended at\n20 U.S.C. \xc2\xa7 237)). Where the state or local educational agency is unable to provide\nsuitable free public education to children who live on federal property, the\nCommissioner of Education is required to make arrangements for such education\n(section 6 (codified as amended at 20 U.S.C. \xc2\xa7 241)). Major disaster assistance is\nauthorized for local educational agencies under section 7 of Public Law 81-874\n(codified as amended at 20 U.S.C. \xc2\xa7 241-1). It should be noted that the $585\nmillion provided by the Joelson Amendment is for assistance \xe2\x80\x9cas authorized by\nsections 3, 6, and 7\xe2\x80\x9d of Public Law 81-874. 115 Cong. Rec. 21,689 (1969).\nConsequently, no funding is provided for sections 2 and 4, and these sections need\nnot concern us further.\nSection 3 of Public Law 81-874 (as amended and codified) requires the Commissioner to compute the \xe2\x80\x9centitlement\xe2\x80\x9d of a local educational agency under a\nformula, whereby, simply stated, the number of Category A children and one-half\nthe Category B children2 is multiplied by the local contribution rate for the school\ndistrict as determined under section 3(d). The determination of entitlement is not\nentirely mechanical, for within fairly narrow limits the Commissioner has\ndiscretion in selecting the basis for his determination of the local contribution rate,\nand other provisions permit him to make favorable adjustments in entitlements\nunder narrowly defined circumstances (section 3(c)(2), (c)(4), (e); section 5(d)(1)\n(codified as amended at 20 U.S.C. \xc2\xa7 240)).\n\n1\nThis memorandum does not consider title I of the Elementary and Secondary Education Act of\n1965, Pub. L. No. 89-10, 79 Stat. 27 (codified as amended at 20 U.S.C. \xc2\xa7\xc2\xa7 241a\xe2\x80\x93241m (Supp. IV\n1965\xe2\x80\x931968)), which, although enacted as title II of Public Law 81-874, is usually cited as a separate\nstatute and is listed as a separate appropriation item in the Joelson Amendment. 115 Cong. Rec. 21,689\n(1969).\n2\nThe terms \xe2\x80\x9cCategory A\xe2\x80\x9d and \xe2\x80\x9cCategory B\xe2\x80\x9d refer to the standards for eligibility under sections 3(a)\nand 3(b), respectively.\n\n304\n\n\x0cPresidential Authority to Impound Funds\n\nOnce a district\xe2\x80\x99s section 3 entitlement has been determined, however, the process of making payments becomes mechanical. Section 5(b) of Public Law 81-874\n(as amended and codified) provides:\nThe Commissioner shall . . . from time to time pay to each local educational agency, in advance or otherwise, the amount which he estimates such agency is entitled to receive under this subchapter. . . .\nSums appropriated pursuant to this subchapter for any fiscal year\nshall remain available, for obligation and payments with respect to\namounts due local educational agencies under this subchapter for\nsuch year, until the close of the following fiscal year.\n20 U.S.C. \xc2\xa7 240(b).3\nHowever, Public Law 81-874 does not constitute a promise by the United\nStates to pay the full entitlement, for the statute contemplates that Congress may\nchoose not to appropriate sufficient money to fund the program at 100% of\nentitlement. In such a circumstance section 5(c) provides that the Commissioner\nafter deducting the amount necessary to fund section 6, shall, subject to any\nlimitation in the appropriation act, apply the amount appropriated pro rata to the\nentitlements.4 (Since the Joelson Amendment provides no funding for sections 2\nand 4, this would mean that after deducting the amount necessary to fund section 6\nand, perhaps, constituting a reserve for possible application to section 7,5 the\nappropriation would be applied to the payment of section 3 entitlements.)\nIn sum, whatever limited discretionary authority the Commissioner may have\nwith respect to determining entitlements, section 5 does not appear to permit any\nexercise of discretion in the application of appropriated funds to the payment of\nentitlements. Since the $585 million carried in the Joelson Amendment is only\n90% of the total estimated entitlements, Departments of Labor and Health,\nEducation, and Welfare Appropriations for 1970: Hearings Before the Subcomm.\n3\nThis provision for continued availability beyond the close of the fiscal year conflicts with section\n405 of the appropriation bill, H.R. 13111, 91st Cong. (as reported by H. Comm. on Appropriations,\nJuly 24, 1969). However, we understand that HEW regards the obligation of the funds as occurring\nwithin the fiscal year, even though the precise amount due may not be ascertained until after the close\nof the fiscal year.\n4\nThus, he would have no authority to vary this formula in order to provide fuller funding for\nCategory A entitlements at the expense of Category B entitlements unless Congress were so to provide\nin the appropriation act.\n5\nIt is arguable that since the Joelson Amendment appropriates funds to carry out sections 3, 6,\nand 7, the Commissioner could set up a reserve for contingencies under section 7, disaster assistance.\nOn the other hand, section 7(c) of Public Law 81-874 permits the Commissioner, notwithstanding the\nAnti-Deficiency Act, to grant assistance under section 7 out of moneys appropriated for the other\nsections, such funds to be reimbursed out of subsequent appropriations for carrying out section 7. Since\nthe statute permits such application of funds allocated to carrying out section 3, it would be hard for the\nCommissioner to justify withholding funds from allocation on the basis of the possibility that they\nmight be needed for disaster assistance.\n\n305\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\non Departments of Labor and Health, Education, and Welfare and Related\nAgencies of the H. Comm. on Appropriations, 91st Cong., pt. 5, at 229 (1969),\ndiscretionary cutbacks on entitlements would have to exceed 10% of the total\nbefore there would be any impact on the total funding of the program.\nWe do not, in short, find within Public Law 81-874 any statutory authority for\nthe Commissioner in the exercise of his discretion to avoid applying to the\nentitlements the full sum appropriated, and we conclude that the provisions of\nsection 5 are mandatory in this respect. 6 We understand that this conclusion is\nconsistent with the position taken over the years by the General Counsel of the\nDepartment of Health, Education, and Welfare.7\nPublic Law 81-815 authorizes payments to assist local school districts in the\nconstruction of school facilities in areas where enrollments are increased by\nfederal activities. The entitlement for assistance is computed under a statutory\nformula, and in addition there is provision for judicial review of a commissioner\xe2\x80\x99s\ndetermination refusing to approve part or all of any application for assistance\nunder the Act. Id. \xc2\xa7 11(b) (codified as amended at 20 U.S.C. \xc2\xa7 641(b)). On the\nother hand, the mechanics of administration of Public Law 81-815 differ significantly from those of Public Law 81-874. First, the commissioner is not required to\napply appropriations pro rata among the eligible districts, but in accordance with\npriorities which he establishes by regulation (section 3 (codified as amended at 20\nU.S.C. \xc2\xa7 633)). Second, entitlement for assistance is not computed on an annual\nbasis, but as a share of the cost of a particular project. Thus, if funds are held up in\none fiscal year, the project may be funded the next year. Finally, the commissioner\nis apparently free to allot, in his discretion, an indefinite share of the appropriation\nto section 14 purposes, school construction on Indian reservations.\nWhile we hesitate to conclude, on this fairly summary consideration, that the\nCommissioner has discretionary authority under Public Law 81-815 to delay\nindefinitely the obligation and expenditure of funds appropriated to carry out the\nstatute, it does appear to us that there are enough discretionary powers throughout\nthe statute to permit him to postpone the obligation of funds during fiscal 1970.\nIndeed, the Joelson Amendment provides that the appropriation for Public Law\n81-815 shall remain available until expended, 115 Cong. Rec. 21,689, which\nwould seem to confirm the conclusion that there is no legal requirement that the\n\n6\nMandatory, that is, provided that the school district is in compliance with applicable federal\nstatutes and regulations. Where a district is not in compliance, the Commissioner may have authority to\nwithhold or terminate assistance, see, e.g., Civil Rights Act of 1964, Pub. L. No. 88-352, tit. VI, 78\nStat. 241, 252 (codified at 42 U.S.C. \xc2\xa7\xc2\xa7 2000d et seq. (1964 & Supp. IV 1965\xe2\x80\x931968)); 45 C.F.R. pt. 80\n(1968). Whether in the event of such a withholding or termination the Commissioner would be required\nto apply the funds to the unfunded entitlements of other districts is a point we need not decide at this\ntime.\n7\nMemorandum for Assistant Secretary Huitt from General Counsel Willcox (Mar. 29, 1966);\nMemorandum for the Secretary from General Counsel Banta (Aug. 6, 1958) (HEW files do not indicate\nwhether this memo was actually sent).\n\n306\n\n\x0cPresidential Authority to Impound Funds\n\nfunds be obligated in the year for which the appropriation is made. However,\ninasmuch as the appropriation in question is relatively small and is consistent with\nthe Administration\xe2\x80\x99s budget request, we see no need to discuss in greater detail the\nlegal arguments which could be used to support a deferral of action to obligate the\nfunds.\nII.\nNotwithstanding the apparently mandatory provisions of Public Law 81-874, it\nhas been suggested that the President has a constitutional right to refuse to spend\nfunds which Congress has appropriated. In particular, there have been a number of\nstatements by congressmen with respect to the very programs of the Office of\nEducation presently under consideration that Congress could not force the\nPresident to spend money which he did not want to spend.\nSection 406 of the Elementary and Secondary Education Amendments of 1967,\nPub. L. No. 90-247, 81 Stat. 783 (1968) (as added by the Vocational Education\nAmendments of 1968, Pub. L. No. 90-576, \xc2\xa7 301, 82 Stat. 1064, 1094), provides\nthat notwithstanding any other provision of law, unless expressly in limitation of\nthis provision, funds appropriated to carry out any Office of Education program\nshall remain available for obligation until the end of the fiscal year. The purpose\nof this provision was to deny to the President authority which he would otherwise\nhave had under the Revenue and Expenditure Control Act of 1968, Pub. L. No. 90364, \xc2\xa7\xc2\xa7 202\xe2\x80\x93203, 82 Stat. 251, 271\xe2\x80\x9372, to reduce obligations and expenditures on\nOffice of Education programs, and, in particular, the impacted area programs and\ntitle III of the National Defense Education Act of 1958, Pub. L. No. 85-864, 72\nStat. 1580, 1588 (codified at 20 U.S.C. \xc2\xa7\xc2\xa7 441 et seq. (1964 & Supp. IV 1965\xe2\x80\x93\n1968)). See 114 Cong. Rec. 29,155 (1968). During the debate in both Houses on\nthis provision several members stated that section 406 would not interfere with the\nPresident\xe2\x80\x99s constitutional authority to reduce expenditures in the area of education.\nSee 114 Cong. Rec. 29,159 (1968) (remarks of Sens. Dominick and Yarborough);\n114 Cong. Rec. 29,481 (1968) (remarks of Congressmen Perkins and Quie).\nSimilar views were expressed almost contemporaneously in connection with\nthe House of Representatives\xe2\x80\x99 consideration of a Senate amendment to the LaborHEW appropriations bill, 1969 (H.R. 18037, 91st Cong.), which would exempt\nfrom both the Antideficiency Act and the Revenue and Expenditure Control Act\nan appropriation of $91 million for impacted area school assistance for fiscal\n1968. In advising the House to accept the Senate amendment, Congressman Flood\nstated:\nSection 406 of the Vocational Education Act amendments seems to\nmany and, I must say, not to others, to cover what the language in\ndisagreement seeks to do; but in any event there are many instances\nin which it has been made clear that the President has the constitu-\n\n307\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\ntional powers to refuse to spend money which the Congress appropriates.\n114 Cong. Rec. 30,588 (Oct. 10, 1968). Congressman Laird agreed:\nThe language will not be interpreted as a requirement to spend because of the constitutional question which is involved. The Congress\ncannot compel the President of the United States to spend money\nthat he does not want to spend.\nId. at 30,588\xe2\x80\x9389. More recently, in the hearing on HEW\xe2\x80\x99s appropriation bill for\nfiscal 1970 (H.R. 13111, 91st Cong.), Congressman Smith stated his belief that\nHEW was not compelled to spend the funds appropriated for the impact aid\nprogram. Hearings Before a Subcommittee of the House Appropriations Committee, 91st Cong., pt. 3, at 263 (1969). Subcommittee Chairman Flood appeared to\nagree. Id. at 264.\nTaken together these statements evidence broad congressional support for the\nproposition that the President has some residual constitutional authority to refuse\nto expend those funds to which section 406 applies. What is not clear is the nature\nor the precise source of the authority the speakers had in mind.\nFor the reasons discussed below we conclude that the President does not have a\nconstitutional right to impound Public Law 81-874 funds notwithstanding a\ncongressional direction that they be spent. However, before proceeding with\ndiscussion of the constitutional question we might note that the congressional\nstatements cited above might be used in support of another argument for presidential authority, based on statutory interpretation. It might be argued that although\nthese statements cannot affect the interpretation of Public Law 81-874, since they\nwere not made in the course of enacting or amending that statute, nevertheless\nPublic Law 81-874 is not self-executing, and its operation is expressly conditioned\non the enactment of subsequent appropriations legislation. Therefore, in determining the duties of the Commissioner of Education one must construe the intent of\nboth the substantive legislation, Public Law 81-874, and the appropriations\nlegislation, and the present understanding of Congress, as evidenced by the\nstatements above, is that the enactment of the appropriation does not create a duty\nto spend.\nUp to a point this argument has a certain amount of validity. We do not doubt,\nfor example, that notwithstanding the terms of Public Law 81-874, Congress could\nprovide in its appropriation that the money need not be spent. Or it could enact an\nappropriation, and then provide in contemporaneous or subsequent legislation that\nthe money need not be spent, as was done in title II of the Revenue and Expenditure Control Act of 1968, Pub. L. No. 90-364. However, the congressional\nstatements cited above refer to the President\xe2\x80\x99s constitutional powers and not to\ncongressional intent. It seems doubtful that one can infer from those statements,\n\n308\n\n\x0cPresidential Authority to Impound Funds\n\nmost of them made in 1968, that Congress, in enacting the appropriations legislation in 1968, intended to exert less than its full authority to require the expenditure\nof funds appropriated to Public Law 81-874. Still, since at this writing the\nappropriations legislation has not yet been passed, it may be that legislative history\nmay still be made which would support the argument that Congress does not\nintend to require the expenditure of the entire sum appropriated.\nWith respect to the suggestion that the President has a constitutional power to\ndecline to spend appropriated funds, we must conclude that existence of such a\nbroad power is supported by neither reason nor precedent. There is, of course, no\nquestion that an appropriation act permits but does not require the Executive\nBranch to spend funds. See Federal-Aid Highway Act of 1956\xe2\x80\x94Power of President to Impound Funds, 42 Op. Att\xe2\x80\x99y Gen. 347, 350 (1967). But this is basically a\nrule of construction, and does not meet the question whether the President has\nauthority to refuse to spend where the appropriation act or the substantive\nlegislation, fairly construed, requires such action.\nIn 1967, Attorney General Clark issued an opinion upholding the power of the\nPresident to impound funds which had been apportioned among the States\npursuant to the Federal-Aid Highway Act of 1956, 23 U.S.C. \xc2\xa7\xc2\xa7 101 et seq. (1964\n& Supp. IV 1965\xe2\x80\x931968), but had not been obligated through the approval by the\nSecretary of Transportation of particular projects. Federal-Aid Highway Act, 42\nOp. Att\xe2\x80\x99y Gen. 347. This opinion appears to us to have been based on the construction of the particular statute, rather than on the assertion of a broad constitutional principle of executive authority. While the reasoning of the opinion might\nlend support to executive action deferring the obligation of funds under Public\nLaw 81-815, we think the case of Public Law 81-874 is clearly distinguishable,\nbecause, among other reasons, impounding the Public Law 81-874 funds would\nresult not in a deferral of expenditures but in permanent loss to the recipient school\ndistricts of the funds in question and defeat the congressional intent that the\noperations of these districts be funded at a particular level for the fiscal year.\nWhile there have been instances in the past in which the President has refused\nto spend funds appropriated by Congress for a particular purpose, we know of no\nsuch instance involving a statute which by its terms sought to require such\nexpenditure.\nAlthough there is no judicial precedent squarely in point, Kendall v. United\nStates, 37 U.S. (12 Pet.) 524 (1838), appears to us to be authority against the\nasserted presidential power. In that case it was held that mandamus lay to compel\nthe Postmaster General to pay to a contractor an award which had been arrived at\nin accordance with a procedure directed by Congress for settling the case. The\nCourt said:\nThere are certain political duties imposed upon many officers in\nthe executive department, the discharge of which is under the direction of the President. But it would be an alarming doctrine, that Con-\n\n309\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\ngress cannot impose upon any executive officer any duty they may\nthink proper, which is not repugnant to any rights secured and protected by the constitution; and in such cases, the duty and responsibility grow out of and are subject to the control of the law, and not to\nthe direction of the President. And this is emphatically the case,\nwhere the duty enjoined is of a mere ministerial character.\nId. at 610.\nIt might be argued that Kendall is not applicable to the instant situation because\nthe Commissioner of Education\xe2\x80\x99s duties are not merely ministerial. Cf. Decatur v.\nPaulding, 39 U.S. (14 Pet.) 497, 515 (1840). On the other hand, while discretion is\ninvolved in the computation of the entitlement of the recipient districts, as we have\npointed out, the application of the appropriation to the payment of entitlements\npursuant to section 5(c) of Public Law 81-874 might reasonably be regarded as a\nministerial duty. In any event, the former distinction between discretionary and\nministerial duties has lost much of its significance in view of the broad availability\nof judicial review of agency actions and of a remedy in the Court of Claims for\nfinancial claims against the government. 28 U.S.C. \xc2\xa7 1491 (1964). Thus, the mere\nfact that a duty may be described as discretionary does not, in our view, make the\nprinciple of the Kendall case inapplicable, if the action of the federal officer is\nbeyond the bounds of discretion permitted him by the law.\nIn an opinion letter of May 27, 1937 to the President, * Attorney General Cummings answered in the negative the question whether the President could legally\nrequire the heads of departments and agencies to withhold expenditures from\nappropriations made. Insofar as the opinion concludes that a presidential directive\nmay not bind a department head in the exercise of discretionary power vested in\nhim by statute, this opinion appears inconsistent with the views expressed in the\nopinion of Attorney General Clark previously cited and with constitutional\npractice in recent years.8 However, the Cummings opinion also rejects any idea\nthat the President has any power to refuse to spend appropriations other than such\npower as may be found or implied in the legislation itself.\nIt is in our view extremely difficult to formulate a constitutional theory to\njustify a refusal by the President to comply with a congressional directive to\nspend. It may be argued that the spending of money is inherently an executive\nfunction, but the execution of any law is, by definition, an executive function, and\nit seems an anomalous proposition that because the Executive Branch is bound to\nexecute the laws, it is free to decline to execute them. Of course, if a congressional\ndirective to spend were to interfere with the President\xe2\x80\x99s authority in an area\n*\nEditor\xe2\x80\x99s Note: That opinion letter is also included in this volume (Presidential Authority to Direct\nDepartments and Agencies to Withhold Expenditures From Appropriations Made, 1 Op. O.L.C. Supp.\n12 (May 27, 1937)).\n8\nSee also The Jewels of the Princess of Orange, 2 Op. Att\xe2\x80\x99y Gen. 482 (1831) (Taney, A.G.).\n\n310\n\n\x0cPresidential Authority to Impound Funds\n\nconfided by the Constitution to his substantive direction and control, such as his\nauthority as Commander in Chief of the Armed Forces and his authority over\nforeign affairs, United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 319\xe2\x80\x9322\n(1936), a situation would be presented very different from the one before us. But\nthe President has no mandate under the Constitution to determine national policy\non assistance to education independent from his duty to execute such laws on the\nsubject as Congress chooses to pass.\nIt has been suggested that the President\xe2\x80\x99s duty to \xe2\x80\x9ctake Care that the Laws be\nfaithfully executed,\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 3, might justify his refusal to spend, in\nthe interest of preserving the fiscal integrity of the government or the stability of\nthe economy. This argument carries weight in a situation in which the President is\nfaced with conflicting statutory demands, as, for example, where to comply with a\ndirection to spend might result in exceeding the debt limit or a limit imposed on\ntotal obligations or expenditures. See, e.g., Pub. L. No. 91-47, tit. IV, 83 Stat. 49,\n82 (1969). But it appears to us that the conflict must be real and imminent for this\nargument to have validity; it would not be enough that the President disagreed\nwith spending priorities established by Congress. Thus, if the President may\ncomply with the statutory budget limitation by controlling expenditures which\nCongress has permitted but not required, he would, in our view, probably be\nbound to do so, even though he regarded such expenditures as more necessary to\nthe national interest than those he was compelled to make.9\nIf Congress should direct the expenditure of funds in the carrying out of a\nparticular program or undertaking, say, construction of a public building, but\nwithout limiting the Executive\xe2\x80\x99s discretion in such a way as to designate the\nrecipient of the appropriated funds, a better argument might perhaps be made for a\nconstitutional power to refuse to spend than is available in the formula grant\n\n9\nWe understand that the operation of the expenditure limitation imposed by title IV of Public Law\n91-47 may require curtailment of certain controllable expenditures. Paradoxically, title IV would not\nconflict with the increase over budgeted amounts in appropriations provided by the Joelson Amendment, because the expenditure limitation would automatically be adjusted upward. Nevertheless, we are\ninformed that it might prove difficult to comply with title IV without cutting back on expenditure of\nbudgeted funds for Public Law 81-874 and other Office of Education programs. Whether in such a\nsituation title IV could be viewed as conflicting with and thus superseding the requirements of Public\nLaw 81-874 depends to a large extent on the Executive\xe2\x80\x99s spending options at that time. Two\nconsiderations cause us to hesitate to infer from title IV a grant of authority to the President to impound\nappropriations for formula grants for education. First, title IV, as passed by the Senate, contained\nspecific language permitting the impounding of funds appropriated for formula grants and other\nmandatory programs, but exempting from this authority education programs. The conference report\ncontained neither the grant of authority nor the exception. H.R. Rep. No. 91-356 (1969) (Conf. Rep.).\nSecond, section 406 of the Elementary and Secondary Education Amendments (as added by the\nVocational Education Amendments of 1968) would conflict with such a grant of authority, and there is\nlegislative history to the effect that title IV of Public Law 91-47 was not intended to alter the effect of\nsection 406 of the Elementary and Secondary Education Amendments. See 115 Cong. Rec. 18,928\xe2\x80\x9329\n(1969). Nevertheless, we do not rule out at this time the possibility that in appropriate circumstances\ntitle IV might permit the impounding of such funds.\n\n311\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nsituation presented by Public Law 81-874. Or this might be viewed simply as a\nsituation in which the duty to spend exists but there is no constitutional means to\ncompel its performance.\nIII.\nAs to the availability of a remedy, if our conclusion that section 5 of Public\nLaw 81-874 requires expenditure of the appropriation is correct, we believe that\nthe recipient school districts will probably have a judicial remedy. It is true that\nunlike Public Law 81-815, Public Law 81-874 has no specific provision for\njudicial review of a refusal to make a grant. However, absence of such a provision\ndoes not imply that no judicial review was intended. See Abbott Labs. v. Gardner,\n387 U.S. 136, 139\xe2\x80\x9346 (1967). It may be that a suit to compel the Commissioner to\napply the appropriation would be inappropriate, see Land v. Dollar, 330 U.S. 731,\n738 (1947), but if the school districts are legally entitled to payment under the\nstatute, they can sue the government in the Court of Claims. 28 U.S.C. \xc2\xa7 1491.\nSuch a suit would raise interesting legal problems, for it is clear that \xe2\x80\x9centitlement\xe2\x80\x9d\nunder Public Law 81-874 is not itself equivalent to a legal obligation to pay, and it\nis doubtful that even entitlement plus appropriation creates a vested right which\nmay not be destroyed by subsequent congressional action. Accordingly, technical\ndefenses might prevent recovery by a school district even if the court concluded\nthat the Executive Branch had a statutory duty to spend the appropriation.\nWILLIAM H. REHNQUIST\nAssistant Attorney General\nOffice of Legal Counsel\n\n312\n\n\x0c'


b'Investigative Authority Vested in the Inspector\nGeneral of the Department of Transportation\nThe Inspector General o f the Department o f Transportation has the same broad authority to\ninvestigate fraud against Department programs and operations that the investigative\nunits transferred into the O ffice o f Inspector General possessed when the Inspector\nGeneral A ct o f 1978 becam e law.\n\nDecember 19, 1989\nM e m o r a n d u m O p in io n f o r t h e In s p e c t o r G e n e r a l\nD e p a r t m e n t o f T r a n s p o r t a t io n\n\nThis is in response to your letter of November 1, 1989, requesting the\nviews o f this Office concerning the scope o f your investigative authority\nas Inspector General o f the Department of Transportation (\xe2\x80\x9cDOT-IG\xe2\x80\x9d). You\nspecifically asked us to consider whether you have authority under the\nInspector General Act of 1978 (the \xe2\x80\x9cAct\xe2\x80\x9d), 5 U.S.C. app., to investigate alle\xc2\xad\ngations of fraud against DOT programs and operations by private parties\nwho do not receive federal funds. You indicated that examples o f such\nfraud include false statements to DOT in applications for permits or\nlicenses and the forgery or alteration o f DOT documents or o f statements\nor signatures by DOT personnel on non-DOT documents. You have not\nasked for our views with respect to any specific investigation or any spe\xc2\xad\ncific category o f investigations for particular DOT programs or operations.\nSubject to the caveat that this letter must not be understood as specif\xc2\xad\nic approval o f any particular investigation or category of investigations\nfor a particular program or operation, it is our view that, pursuant to sec\xc2\xad\ntion 9(a)(l)(K ) o f the Act, you possess the same broad authority to inves\xc2\xad\ntigate fraud against DOT that the various investigative units that the Act\ntransferred to your Office possessed at the time of the transfer. In light o f\nthis conclusion, it is unnecessary at this time to decide whether the pro\xc2\xad\nvisions o f the Act that set forth the general authority of all Inspectors\nGeneral also authorize such investigations. Should you conclude that a\nparticular investigation is not encompassed by the authority o f the inves\xc2\xad\ntigative units transferred to your Office by the Act, we would be pleased\nto consider the issue o f your general authority.\n\n377\n\n\x0cDiscussion\nSection 9(a)(l)(K ) o f the Inspector General Act transferred to the\nnewly created DOT-IG\nthe offices o f [DOT] referred to as the \xe2\x80\x9cOffice of Investi\xc2\xad\ngations and Security\xe2\x80\x9d and the \xe2\x80\x9cOffice o f Audit\xe2\x80\x9d o f the\nDepartment, the \xe2\x80\x9cOffices o f Investigations and Security,\nFederal Aviation Administration\xe2\x80\x9d, and \xe2\x80\x9cExternal Audit\nDivisions, Federal Aviation Administration\xe2\x80\x9d, the \xe2\x80\x9cInvestiga\xc2\xad\ntions Division and the External Audit Division of the Office\no f Program Review and Investigation, Federal Highway\nAdministration\xe2\x80\x9d, and the \xe2\x80\x9cOffice o f Program Audits, Urban\nMass Transportation Administration\xe2\x80\x9d.\nAs discussed below, the Act\xe2\x80\x99s legislative history and DOT\xe2\x80\x99s immediate\nimplementation o f the Act indicate a contemporaneous understanding by\nCongress and DOT that the investigative authority o f the DOT-IG under\nthis provision was as broad as the authority possessed by these prede\xc2\xad\ncessor offices at the time the Act became law. It was also understood that\nthis provision had the effect o f transferring substantially all existing DOT\ninvestigative responsibilities to the DOT-IG.\nThe Senate report on the Act noted that the DOT-IG would have the\nresponsibility for all DOT auditing and investigative work:\nThe Department o f Transportation has expressed its\nopposition to the decision to consolidate the auditing and\ninvestigating units now found in the various modal admin\xc2\xad\nistrations o f DOT into the office o f [Inspector General],\nThe committee recognizes that the various modes in\nDOT have unique independence growing directly from the\nDepartment o f Transportation Act and the statutes creating\nthe Federal Aviation Administration, Federal Highway\nAdministration, and Urban Mass Transit Administration.\nHowever, the committee does not believe that the current\narrangements \xe2\x80\x94 a proliferation o f 116 audit and investiga\xc2\xad\ntive units with audit units working for the program admin\xc2\xad\nistrators whose programs they purport to audit \xe2\x80\x94 is a\nsatisfactory arrangement. The committee believes that the\neffort to consolidate responsibility for auditing and investi\xc2\xad\ngation in an independent individual would be undermined if\nthere was not one Inspector and Auditor General in the\nTransportation Department with overall accountability for\nall auditing and investigative work.\n378\n\n\x0cS. Rep. No. 1071, 95th Cong., 2d Sess. 39 (1978).\nOn April 27, 1979, Secretary o f Transporation Brock Adams issued a\nmemorandum providing information on the newly established Office o f\nInspector General for DOT. In that memorandum he stated that:\nThe [Inspector General] Act identifies the audit and\ninvestigations organizations which have been transferred\nto the IG .... I am further authorized [by section 9(a)(2) of\nthe Act] to transfer other functions, offices or agencies\nwhich are related to the functions o f the IG. Although I do\nnot propose transferring any other offices to the IG at this\ntime, I do wish to make it clear that, other than the investi\xc2\xad\ngations programs involving United States Coast Guard\nOfficer and Enlisted Personnel, and odometer fraud (Public\nLaw 94-364)[,] there should be no auditor or criminal inves\xc2\xad\ntigator personnel employed in DOT other than within the\nOffice o f Inspector General.\n\n... I believe that the combining o f all auditors and inves\xc2\xad\ntigators into the IG organization will enhance the quality of\naudit and investigations service in this Department.\nId. at 1-2.\n\nIt is evident that Congress and DOT understood that, except for the two\ninvestigative programs mentioned in the Secretary\xe2\x80\x99s memorandum, all\nDOT investigative responsibilities that existed at the time the Inspector\nGeneral Act was enacted had been transferred by the Act to the DOT-IG.\nDOT\xe2\x80\x99s investigative authority thus generally rests with the DOT-IG,1 and\nthe DOT-IG may investigate all matters, including fraud against DOT pro\xc2\xad\ngrams and operations, that the investigative units specified in section\n9(a)(l)(K) o f the Act were authorized to investigate at the time they were\ntransferred by the Act to the Office o f the DOT-IG.\nMission statements for the transferred investigative units were includ\xc2\xad\ned in the implementation plan for the establishment o f the DOT-IG, which\nDOT submitted to the Office of Management and Budget on January 5,\n1979. The descriptions generally appear broad enough to have included\ninvestigating false statements and similar fraud against DOT programs or\noperations. For example, the mission statement for the Office o f Investi\xc2\xad\ngations and Security of the Federal Aviation Administration (\xe2\x80\x9cFAA\xe2\x80\x9d) indi\xc2\xad\ncates generally that it was the \xe2\x80\x9cprincipal staff element o f FAA with\n\xe2\x80\x98As Secretary Adams recognized in his memorandum, various other DOT components may, from time\nto time, be assigned specific investigative authonty by statute or administrative action We have not con\xc2\xad\nducted a review o f such assignments.\n\n379\n\n\x0crespect to ... [investigations in support o f the FAA\xe2\x80\x99s basic mission\xe2\x80\x9d\n(sec. 2(a)(1)). More specifically, it conducted \xe2\x80\x9c[p]reliminary investigation[s] o f allegations o f violations o f ... Federal criminal statutes (bribery,\nfraud, graft, false statements, theft o f Government property, etc., as\nencompassed in Title 18, U.S. Code)\xe2\x80\x9d (sec. 2(c)(9)), and \xe2\x80\x9c[t]he subjects of\ninvestigations include [d] FAA applicants and employees; contractor\npersonnel; sponsors and grantees; airmen, air and commercial carriers,\nand other individuals certificated or designated by the FAA\xe2\x80\x9d (Audit and\nInvestigative Plan, at 17) (emphasis added).\nWhile it would appear that collectively the authority that transferred to\nthe DOT-IG with the various investigative units was quite broad, it is\nbeyond the scope o f this letter to discuss specifically the authority of\neach transferred unit. If you have any such specific questions, you should\nraise them in the first instance with agency counsel, who have expertise\nregarding the relevant statutes and programs.\n\nConclusion\nIt is our view that, pursuant to section 9(a)(l)(K ) o f the Inspector\nGeneral Act, the DOT-IG has the same broad authority to investigate alle\xc2\xad\ngations o f fraud against DOT programs and operations that the investiga\xc2\xad\ntive units transferred into that Office possessed at the time the Act\nbecame law. In light o f this conclusion, it appears unnecessary to decide\nwhether investigations of fraud against DOT programs and operations are\nalso authorized by the general provisions o f the Act. We would be pleased\nto advise you further if you believe a particular investigation is beyond\nthe authority o f the transferred units.\nWILLIAM P. BARR\nAssistant Attorney General\nOffice o f Legal Counsel\n\n380\n\n\x0c'


b"Dual Membership of an Individual on\nTwo Federal Advisory Committees\nT h e re are n o legal co n strain ts, in clu d in g th e co n flict o f interest law s, th at w o u ld ru le out\nan in d iv id u al's c o n c u rre n t m em bership on tw o federal ad v iso ry co m m ittees.\nP er diem c o m p en satio n receiv ed for se rv ice on a federal a d v iso ry co m m itte e d o e s not\nc o n stitu te a salary from th e federal g o v ern m en t so as to disqualify an individual\nreceiv in g su ch co m p en satio n from m em b ersh ip o n th e P re sid e n t\xe2\x80\x99s N u c le a r S afety O v e r \xc2\xad\nsight C o m m ittee.\n\nJuly 2, 1980\nMEMORANDUM OPINION FOR TH E COUNSEL TO TH E\nPR ESID EN T\nThis is in response to your inquiry whether there are any legal\nconstraints that rule out the concurrent membership of Mr. C on two\nadvisory committees, the Nuclear Regulatory Commission\xe2\x80\x99s Advisory\nCommittee on Reactor Safety (ACRS) and the President\xe2\x80\x99s Nuclear\nSafety Oversight Committee (Oversight Committee).\nIt should be noted at the outset that 5 U.S.C. \xc2\xa7 5533(d) in effect\npermits an individual to hold appointments simultaneously from more\nthan one agency to perform for them, respectively, intermittent advi\xc2\xad\nsory duties on a \xe2\x80\x9cwhen-actually-employed basis,\xe2\x80\x9d and that it allows him\nto receive pay for all of his work if it is not \xe2\x80\x9cfor the same hours of the\nsame day.\xe2\x80\x9d\nSection 1-101 of Executive Order No. 12,202, March 18, 1980, which\nestablished the Oversight Committee, provides that its membership of\nsix persons shall be composed of \xe2\x80\x9ccitizens who do not receive a salary\nfrom the Federal government\xe2\x80\x9d (emphasis added). Mr. C was at the time\nof his appointment to that committee and still is a member of ACRS.\nHe receives per diem compensation for each day of his work for it. 42\nU.S.C. \xc2\xa72039. The question arises whether such compensation consti\xc2\xad\ntutes salary so as to disqualify him for a seat on the Oversight Commit\xc2\xad\ntee. In our opinion it does not. The quoted language from Executive\nOrder No. 12,202 was obviously intended to do no more than limit the\nOversight Committee\xe2\x80\x99s membership to persons who are not regular\nemployees of the government. Mr. C, who is on the faculty of a\nuniversity, and his four colleagues all fit into that category. Moreover,\nhis payment by ACRS on a per diem basis does not fall within the\n717\n\n\x0cstandard dictionary definition of \xe2\x80\x9csalary\xe2\x80\x9d as \xe2\x80\x9cfixed compensation paid\nregularly for services,\xe2\x80\x9d a definition that we think should ordinarily be\nfollowed where a different one is not supplied.\nTurning to the conflict of interest laws, we find that only 18 U.S.C.\n\xc2\xa7 208 need be mentioned here as conceivably having any relevance to\nMr. C \xe2\x80\x99s dual employment. That statute prohibits a federal employee\nfrom participating as such in a particular matter in which, among\nothers, he or his employer has a financial interest. If applicable, \xc2\xa7 208\nwould prevent Mr. C from participating in an Oversight Committee\nmatter in which ACRS, another one of his employers, has a \xe2\x80\x9cfinancial\ninterest.\xe2\x80\x9d However, the statute is not applicable and Mr. C would not\nbe barred because ACRS, which has no proprietary functions, cannot\nbe said to have a financial interest in any matter within the meaning of\n\xc2\xa7 208. Mr. C would, of course, be barred from participating in a matter\nbefore either committee in which he personally or his university had a\nfinancial interest.\nMr. C\xe2\x80\x99s dual officeholding does not cut across any of the restrictions\nimposed by Executive Order No. 11,222 of May 8, 1965. Like 18\nU.S.C. \xc2\xa7 208, those restrictions are directed to conflicts of interest,\nappearances of such conflicts, etc., that arise from the financial interests\nof a federal employee or persons with whom he is connected.\nFinally, we believe it pertinent to mention that a number of 19th\ncentury precedents speak of a nonstatutory prohibition against a per\xc2\xad\nson\xe2\x80\x99s holding two \xe2\x80\x9cincompatible\xe2\x80\x9d offices. See, e.g., Crosthwaite v. United\nStates, 30 Ct. Cl. 300 (1895), rev'd on other grounds, 168 U.S. 375; 22\nOp. A tt\xe2\x80\x99y Gen. 237 (1898). All these cases involved a person\xe2\x80\x99s filling\ntwo government positions that carried operational responsibilities and in\nnone, so far as our research has revealed, was there a finding of\nincompatibility. Assuming that these precedents have any validity\ntoday, we are of the view that they are nevertheless not apt here if\nonly because both the Oversight Committee and ACRS are collegial\nbodies and both have merely advisory functions.\nIn sum, we see no legal hindrance to Mr. C\xe2\x80\x99s continuing his service\nto both advisory committees.\nL eon U lm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n718\n\n\x0c"