|But the President had other ideas.
In December, as a so-called "anti-inflation" measure, he ordered the Environmental
Protection Agency to withhold $3 billion from the $5 billion authorized
by Congress for FY 1973 and another $3 billion from the $6 billion
for FY 1974.
This is a total of $6 billion arbitrarily lopped
from a crucial program vitally needed by the nation and plainly called
for by Congress.
Limits to Power
Even William Ruckelshaus, director of the EPA,
acknowledged that there is "a legal question as to his (the President's)
authority to limit the funds."
At any rate, that's where the matter now rests.
The President was so determined to gut the purpose of the legislation that
in effect he vetoed it twice. The first time Congress overrode it. The
second time, by impounding the $6 billion, Congress and the Constitution
were simply ignored. There is no recourse at present from presidential
No one quarrels with the President's right, within
certain narrow limits, to hold up expenditures. In his managerial capacity,
for example, the President can refuse to spend money if the purpose for
which the money was appropriated no longer exists.
If I cosponsor a bill to construct an $8 million
new federal building in Tucson and Congress has appropriated $2 million
for furniture, but the building burns down before completion, no one in
his right mind would demand that the $2 million be spent on furniture.
The President should impound the money.
Or if Congress appropriates money to buy meat
for the Army and the price of meat later drops, no one would insist that
the full amount should be spent anyway. Again, the proper action would
be for the President to impound the excess funds.
So it is one thing for a President to act prudently
to cut unwise spending. But it is quite another to use impoundment as an
aggressive weapon to change the whole direction of government and to nullify
acts of Congress -- even those passed over a veto.
The administration's view is that the President
has virtually unlimited power to do as he sees fit with the budget. When
Casper Weinberger, secretary of Health, Education and Welfare, and former
head of the Office of Management and Budget, appeared as a pro-administration
witness on the Public Broadcasting television show, "The Advocates," I
asked him if he thought George McGovern, had he been elected, would have
the right to go against the will of Congress and impound funds for anti-ballistic
missiles, the Trident submarines,
|and our NATO forces in Europe, purely
on the basis of his personal priorities.
Weinberger's response was quite revealing. He
said that while he would certainly disagree with the wisdom of such moves,
there was no doubt in his mind that a President would have such power.
Think about that for a moment. In other words,
the President can do pretty much what he wants with public money. He can
act not only as a manager holding up unwise or unneeded spending but he
can alter national policy, allowing programs he personally favors to survive
while killing those he opposes. Under this view, the will of the people
as expressed by Congress is almost irrelevant.
Without Reason or Precedent
This is even more shocking when the legal justification
used to prop up such a sweeping claim of power is examined. At best, the
Constitution is somewhat vague on this point. Article II, section 3, states
that the President must "take care that the laws be faithfully executed."
This is apparently interpreted that if there are conflicts between different
laws the President can choose which to apply. Thus, the administration
cites wording in such relatively obscure legislation as the Anti-Deficiency
Act of 1905 and the Full Employment Act of 1946. I will not bore you with
a techincal analysis of either other than to point out that the former
was designed primarily to force federal agencies to remain within their
budgets and the latter authorized the President to take needed steps to
prevent unemployment. In neither is there solid ground for broad impoundment
powers now claimed.
Probably one of the most cogent arguments made
against the presidential impoundment authority came from an Arizonan not
usually known as a "liberal". I'm referring to U.S. Supreme Court Justice
William Rehnquist. A memo written when he was an assistant attorney general
in the Justice Department -- before Nixon appointed him as another "strict
constructionist" to the high court -- stated:
|"With respect to the suggestion that the president
has a Constitutional power to decline to spend appropriated funds, we must
conclude that existence of such a broad power is supported neither by reason
or precedent . . .
"It is our view that it is extremely difficult
to formulate a constitutional theory to justify a refusal by the president
to comply with a congressional directive to spend . .
"It seems an anomalous proposition that because
the executive branch is bound to execute the laws it is free to decline
to execute them."