This essay examines the power of the President to order that money appropriated by Congress should not be spent; put another way–can the President refuse to spend funds that Congress authorized to be spent? This essay presumes that the power of appropriation lies in Congress and that the power to spend appropriations lies in the executive branch, namely with the President.[1]
Unlike state constitutions, which may explicitly define the separation of powers among the three branches, the Constitution of the United States does not. Instead, the national Constitution defines the powers of the three branches in its first three articles without mentioning or defining the concept of separation of powers. But in defending the proposed Constitution from critics, its defenders devoted five essays to the balancing and separating of government power.[2] Madison (as Publius) asserted this in the concluding number: “[i]n republican government, the legislative authority necessarily predominates.”[3]
The Constitution is less than explicit regarding the powers to appropriate money and to spend it. Article I, Section 7 supplies the basics of how a bill becomes law, a process that applies to appropriations. This familiar provision allocates to Congress the power to propose a law through a bill, allocates to the President the power to veto that bill, then empowers the Congress to override a presidential veto by two-thirds votes of houses of Congress.
Congressional power to appropriate is mentioned three times in the Constitution: Article I, Section 8, empowers Congress to pay the debts, provide for the common defense, and provide for the general welfare of the United States.[4] Article I, Section 8, later empowers Congress to raise and support armies (limiting appropriations to no longer than two years). And Article I, Section 9, provides that no money can be drawn from the treasury except by appropriations made by law. On the other hand, Sections 2 and 3 of Article II list the President’s powers, but include no powers related to appropriations, even impliedly.
Nothing in the Constitution explicitly describes either the roles of the legislative and executive branches in the appropriation process or the power of the President to spend the money appropriated. Impoundment is unmentioned. Perhaps this lack of coverage informed President Nixon’s attempt to limit by impoundment federal appropriations that supported state sewage systems and sewage treatment. He acted to impound a significant portion of an allocation of funds after his veto of an appropriation was overridden by Congress. The city of New York challenged the impoundment.
During the course of the impoundment controversy, Congress passed the Impoundment Act of 1974, which reinforced Congressional control, but gave the President authority to impose a 45-day delay in spending money appropriated. The Supreme Court later implied that the President had no general authority of impoundment, but did so only as a matter of statutory construction of the appropriations legislation.[5] The Constitution went unmentioned in that case. And the constitutional validity of the Impoundment Act was not at issue. So, the constitutional issue regarding impoundment remains open. I leave it to the reader to address that issue.
When an administrative agency is involved, statutory construction by the agency is a “hot” issue. Judicial review of administrative interpretation of congressional language has been the focus of several recent and controversial Supreme Court cases. The Constitution likely will not be a direct feature in most statutory construction cases, because the issues are capable of being distinguished based on the language of the underlying statute involved.
While the relative constitutional roles of the Supreme Court and the administrative agencies in reviewing statutory language is currently a central judicial theme, direct review of congressional or legislative language as constitutional is not. The Court may be looking for a vehicle to reinvigorate the “nondelegation” doctrine, which limits the ability of Congress to delegate its power to anyone else. Cases featuring impoundment may be an appropriate vehicle for judicial reconsideration of the nondelegation doctrine.
[1] I described the powers of each of the three branches of our federal government In previous Cooley blog essays.
[2] Federalist, Nos. 47 to 51. Two delegates to the Constitutional Convention wrote most of the Federalist essays with James Madison penning all five of these essays.
[3] Federalist, Number 51.
[4] Rendering this language an implied appropriation empowerment.
[5] Train, Administrator, Environmental Protection Agency v. City of New York, 420 U.S. 35 (1975). The opinion of the Court included a finding that the impoundment issue was not rendered moot by the passage of the Impoundment Act.