The President and the Congress: Impoundment of Domestic Funds

Introduction

The current battle over the propriety of executive impoundment of congressionally authorized and appropriated funds for domestic programs is not new to the political departments of the federal government. The history of presidential impoundment dates back at least to 1803, when President Jefferson informed Congress that he would not spend certain authorized and appropriated funds to purchase gunboats. In recent history, Presidents Truman, Eisenhower, Kennedy, Johnson and Nixon have all exercised impoundment powers. Because of the complexity of the issue ofimpoundment this Note will focus on presidential impoundment of funds authorized and appropriated for domestic programs. To do otherwise would require extensive treatment of the President’s power as Commander-in-Chief of the armed services, and his power in the field of foreign affairs.

Conflict over impoundment of funds for domestic programs is inevitable, given the amorphous region of shared powers and overlapping authority existing between Congress and the President. Additional impetus for conflict is produced by the disparate nature of the functions of the executive and legislative branches of the federal government, and the justifiable desire of each branch to protect its ownbailiwick. Recent impoundments by the Nixon Administration have resulted inrenewed debate on the propriety and legality of such actions.

The depth of feeling among the participants in the current confrontation is amply demonstrated by the plethora of bills introduced in the 93rd Congress, the testimony of witnesses before the Senate Subcommittee on Separation of Powers, the coverage of the issue in the media, the multitude of cases challenging presidential impoundments which have been filed in the federal courts, and the filing of amicus curiae briefs by twenty-two Senators, four Representatives and numerous states in State Highway Commission of Missouri v. Volpe.

In order to determine the extent of the presidential powers to impound funds, and the ability of Congress to prevent such action, it is necessary to consider the constitutional and statutory bases for an assertion of powers by each branch, and the rationale supporting the exercise of such powers. The federal system is one of separate branches of government which share certain powers. Although the Constitution states that the executive power shall be vested in a President “who shall take care that the laws be faithfully executed,”  and that “All legislative Powers” granted in the Constitution “shall be vested in a Congress,” only during the peak of political struggle between the Congress and the President can attempts be made to delineate evanescent limits of legislative and executive power. This Note will discuss the hazards of attempting to make a final delineation, in the context of discussing the propriety and legality of executive impoundment of funds authorized and appropriated by Congress for the implementation of domestic programs.

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