The Issue of Impounding

THE Constitution seems clear enough. It says that Congress "shall have power to lay and collect taxes...and provide for the common defense and general welfare of the United States." But when Congress has appropriated money, must a President spend it? Yes, say most congressional leaders. No, says President Nixon.

The constitutional conflict could end up before the Supreme Court, but a clear-cut answer is unlikely. "Great ordinances of the Constitution," wrote Oliver Wendell Holmes, "do not establish and divide fields of black and white. We cannot carry out the distinction between legislative and executive action with mathematical precision and divide the branches into watertight compartments."

Over the years, laws have been passed to give the President considerable discretion in handling congressional appropriations. The Anti-Deficiency Act of 1906 permitted the Chief Executive to set aside appropriations because of "some extraordinary emergency or unusual circumstances." In 1950 the President was granted further power to withhold reserves or make savings after funds were voted by Congress.

Recent Presidents have not hesitated to impound when it suited their purpose. In 1942 Franklin Roosevelt ordered the Secretary of War to establish monetary reserves by the "deferment of construction funds not essential to the war effort." A year later the Senate was disturbed enough by F.D.R.'s impoundment policies to impose some restrictions on them. But the House would not go along, arguing that in time of war. the Chief Executive's power over the budget should not be restrained. In 1949 Harry Truman withheld funds to build a 58-wing Air Force when he thought a 48-wing would do. President Johnson cut back funds appropriated for a variety of domestic programs.

Nixon has gone further than his predecessors. He has claimed the constitutional right to impound, both to manage the economy and to reject programs or portions of programs that he feels are illadvised. While past Presidents have shifted funds slated for one weapons system to another, they have been reluctant to do the same with domestic programs. Nixon has thus further stretched presidential power.

There are few judicial precedents to guide the President and Congress in the conflict. Albert Rosenthal, law professor at Columbia University, cites the one he considers most applicable: the concurring opinion of U.S. Supreme Court Justice Robert Jackson in the 1952 steel-seizure case. Jackson maintained that the President is on strongest constitutional ground when his action is consistent with the explicit direction of a congressional statute; he has less authority when he takes action in an area where Congress has not made known its wishes; he is weakest of all when he acts in opposition to a congressional statute. By impounding so liberally, Nixon obviously falls into Category 3.

Nixon, moreover, is acting in a dramatically altered political environment. Until recent years, an increase in presidential power was widely applauded. Since the Viet Nam War, however, presidential power has come under a cloud and many want to limit it. This adds to the consternation over Nixon's impounding. As Jackson pointed out: "Any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law." For this reason, constitutional authorities would prefer that the issue be ajudicated not in the courts but in the rough and tumble of the political arena. where a workable compromise can be reached.

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