Expanding Presidential power usually erodes democracy, expands government, and facilitates the rise of an increasingly unaccountable “Imperial Presidency”.  Ironically, giving Presidents more power to control spending does just the opposite.

The struggle over government spending has been a fundamental point of contention since the earliest days of our Federal Government.  In the last twenty years, this issue has split the Democrats in Congress, frustrated Republican and Democratic Presidents, and generated numerous Supreme Court cases.  The 1974 effort to resolve the matter, once and for all, substantively contributed to the current explosion in federal spending.

Article I of the U.S. Constitution outlines the power of Congress to create laws [Sections 1 & 8] and the prevailing nature of those laws once signed by the President or passed over a Presidential Veto [Section 7].

Article II of the U.S. Constitution vests all executive power in the President of the United States [Section 1].

This division of power and responsibility was validated by Chief Justice John Marshall in 1825, “the difference between the departments undoubtedly is that the legislature makes, the executive executes, and the judiciary construes the law.” [Wayman v. Southard, 23 U.S. 1, 44 (1825)]

Earlier, Chief Justice Marshall, in his famous Marbury v. Madison, defined the difference between political acts belonging to the executive branch alone as opposed to those executive acts governed by congressional enactments: “He acts, in this respect.., under the authority of the law, and not by instructions of the President.  It is a ministerial act which the law enjoins on a particular officer for a particular purpose…”

[Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 2 L.Ed. 60 (1803)]

However, what happens if Congress creates programs that eventually become unnecessary or obsolete?  What happens if Congress continues to authorize and appropriate funds for those programs?  What happens if Congress provides more funds than recommended by the Executive Branch or exceeds documented need?

President Thomas Jefferson was the first to test the boundaries of Executive authority to second guess Congressional spending.  In the wake of the 1803 Louisiana Purchase, Jefferson reported that, “the sum of $50,000 appropriated by Congress for providing gunboats remains unexpended. The favorable and peaceful turn of affairs on the Mississippi rendered an immediate execution of that law unnecessary…. [1]

Following Jefferson’s precedent, subsequent Presidents selectively withheld appropriated funds on programs that were no longer needed. They also asserted they were effectuating congressional intent not circumventing it.

The Depression and World War II provided opportunities for President Franklin Roosevelt to stretch budgetary discretion beyond Jefferson’s “economy” precedent. He moved funds away from what he deemed less important programs to more pressing programs. Post war demobilization gave President Harry S. Truman additional opportunities to hold back Congressional spending. Truman impounded $735 million in additional funds appropriated by Congress to increase to 58 from 48 the President’s request for Air Force groups. [2]

This expanded justification for Presidential Impoundment of Congressional funds became bi-partisan when President Dwight D. Eisenhower, set aside $137 million appropriated for the initial procurement of Nike-Zeus anti-missile system hardware. John F. Kennedy impounded $180 million appropriated by Congress over the President’s request for developing the B70 Bomber. Lyndon B. Johnson unilaterally decreased federal spending by $5.3 billion to mitigate the inflationary impact of the Vietnam War. [3]

Congress was initially supported the President’s role in managing public funds.  The Anti-Deficiency Act of 1905 provided that appropriations may, “… be so apportioned by monthly or other allotments as to prevent expenditures in one portion of the year, which may necessitate deficiency or additional appropriations to complete the service of the fiscal year for which said appropriations are made.” [4]

The Revised Anti-deficiency Act of 1906 stated: “Whenever it is determined…that

any amount so reserved will not be required to carry out the purposes of the appropriation concerned, he {President] shall recommend the rescission of such

amount …”. [5]

President Warren Harding’s Budget Bureau Director, Charles E. Dawes, further asserted that an agency was not required to spend its total appropriation if it could fulfill its objectives by spending a lesser amount. [6]

Omnibus Appropriations Act of 1951, continued to expand Presidential flexibility on managing and controlling spending: “In apportioning any appropriations, reserves may be established to provide for contingencies or to affect savings whenever savings are made possible through changes in requirements, greater efficiency of operations, or other developments subsequent to the date on which such appropriation was made. [7]

A new breed of liberals began to signal a challenge to Presidential spending control.  Congressman George H. Mahon (D-TX) raised concerns regarding the passage of the 1951 Act: “I would not object, as I know other members would not object, to any reasonable economies in government. But economy is one thing and the abandonment of a policy and program of Congress is another thing.” [8]

Recipients of federal funds began to challenge Presidential control of spending.  The Supreme Court, led by Chief Justice Earl Warren, began to constrict Presidential impoundment and other practices to control spending.  [9]

These new battle lines hardened when President Richard Nixon mounted a more aggressive and effective effort to rein-in federal spending.  The Supreme Court, even under Chief Justice Warren Burger, continued to build legal precedents against Presidential intervention. [10]

“Article I, Section 1, of the Constitution vests “[a]ll legislative powers” in the Congress. No budget message of the President can alter that power and force the Congress to act to preserve legislative programs from extinction prior to the time Congress has declared

that they shall terminate, either by its action or inaction…. Thus, in absence of any contrary legislation, the defendant’s plans to terminate the CAA functions and the OEO itself are unlawful as beyond his statutory authority.”

[American Federation of Government Employees v. Phillips, 358 F. Supp. 60 (1973)]

Nixon continued to impound congressionally appropriated funds. During the 1973-1974 budget year, Nixon refused to spend $12 billion.[11]  Congressional Democrats, sensing the decline in Presidential power in the wake of the mounting Watergate scandal, passed the Congressional Budget and Impoundment Control Act of 1974 (Public law 93-344) [12].  Nixon signed the law on July 12, 1974, one of his final major acts in office. [13]

The Budget Act created the current framework within which the Federal Budget is proposed, passed, and implemented.  It placed Congress firmly in the driver’s seat, and blocked future President’s from taking actions deemed constitutional and prudent for over 171 years.

The result was instant and dramatic.  In the six years prior to the 1974 Act, the federal budget increased on an average of $13.4 billion annually.  In the seven years after the Act, the federal increased by over $49 billion annually.

“From 1950-1974, federal deficits averaged 0.7% of GDP. After the Congressional Budget Act was adopted, from 1975-2007, deficits averaged 2.5% of GDP. And when the Congressional Budget Act was enacted in 1974, real (inflation-adjusted) U.S. government debt per person was $3,240. Today, that figure is $16,527.” [14]

Newt Gingrich resurrected the issue by proposing a new way to reassert Presidential budget management – the Line Item Veto.  This was a key part of his “Contract with America” [15] It became a rallying cry for fiscal “hawks” from across the political spectrum. [16] Former President Ronald Reagan added his voice to the renewed effort: “When I was governor of California, the governor had the line item veto, and so you could veto parts of the spending in a bill. The president can’t do that. I think, frankly—of course, I’m prejudiced—government would be far better off if the president had the right of line-item veto.” [17]

The bill was introduced by Senator Bob Dole (R-KS) on January 4, 1995, cosponsored by Senator John McCain (R-AZ) and 29 other senators. Related House Bills included H.R. 147, H.R. 391, H.R. 2, H.R. 27 and H.R. 3136. The bill was signed into law by President Bill Clinton on April 9, 1996. [18]

Budget “hawks” from both parties cheered, and President Clinton began using the line item veto.  Senator Robert Byrd (D-WV), and others protective of Congressional prerogatives, filed suit to void the law.  Their case was tossed out over lack of standing. [19] Another case succeeded in declaring the Line Item Veto unconstitutional. [20]

On January 31, 2006 President George W. Bush proposed the “Legislative Line Item Veto Act of 2006”.  Conservatives once again rallied to giving the President expanded budgetary powers. [21] It was introduced in the House by Rep. Paul Ryan (R-WI), passed the House Budget Committee on June 14, 2006 by a vote of 24-9, and approved by the House on June 22. A similar bill in the Senate failed. [22]

Republican control of the 114th Congress, the prospect of a Republican President in 2017, and the importance of controlling federal spending, may rekindle interest in revisiting this budgetary turf fight.

Scot Faulkner served as the first Chief Administrative Officer of the U.S. House of Representatives and is currently President of Friends of Harpers Ferry National Historical Park. You may read his columns athttp://citizenoversight.blogspot.com

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[1] “Presidential Impoundment of Funds: A Constitutional Crisis”

Gerald A. Figurski; Akron Law Review, Fall 1973, Page 107


[2] Ibid. Page 111.

[3] Ibid.

[4] Ibid. Page 109.

[5] Ibid.

[6] Ibid.

[7] 2331 U.S.C. 665(c)(2) (1970)

[8] Op.Cit. Figurski, Page 114.

[9] http://www.law.harvard.edu/faculty/hjackson/BudgetActRevisited_34.pdf Page 15

[10] Train v. Campaign Clean Water, 420 U.S. 136 (1975) 420 U.S. 136

[11] http://bancroft.berkeley.edu/ROHO/projects/debt/budgetcontrolact.html

[12] https://www.congress.gov/bill/93rd-congress/house-bill/7130

[13] Op.Cit. HJackson, Page 20.

[14] http://pgpf.org/issues/spending/2014/07/qa-congressional-budget-and-impoundment-control-act-of-1974

[15] http://www.gvpt.umd.edu/jgloekler/documents/contract.pdf

[16] Stephen Moore; Testimony: Line Item Veto for the President; Subcommittee on the Constitution; Committee on the Judiciary; United States Senate; January 24, 1995.

[17] Ibid.

[18] http://thomas.loc.gov/cgi-bin/bdquery/z?d104:SN00004

[19] Supreme Court of the United States; Raines. Director, Office of Management and Budget, et.al. v. Byrd, et.al. Appeal from the U.S. District Court for the District of Columbia; No. 96­1671.

[20] Clinton v. City of New York, 524 U.S. 417 (1998)

[21] http://www.heritage.org/research/reports/2006/03/the-presidents-proposed-line-item-veto-could-help-control-spending

[22] https://www.govtrack.us/congress/bills/109/hr4890

3 replies
  1. Barb Zack
    Barb Zack says:

    Interesting that Clinton backed some aspects of Gingrich’s Contract with America. Democrats fought for the right to spend, spend, spend. And of course, the “guardians of the purse”, The House, refuses now to act on Obama’s increasingly menacing power grabs. Democrats fought for the right to spend. Perhaps an Amendment to the Constitution is in order.

  2. Ron
    Ron says:

    Thanks for the history of this critical topic, Mr. Faulkner. It would seem that an important first act of Congress and the President after the next election would be to repeal the Congressional Budget and Impoundment Control Act of 1974.

  3. Ralph Howarth
    Ralph Howarth says:

    I remember that it used to be that Congress simply raised funds for objects of government, and the President would budget what Congress raised. Now, a hard coded budget is passed like a law where it was not. It was one thing for Congress to pass legislation to deny funds to an object; but otherwise raised funds and the President acted as a monetary controller of sorts. The budget process now takes on the disturbing color of entitlement as if the income of workers somehow as if the government has an obligated right to that property appropriated by the government. This was no so in Parliamentary budget battles with the King of England. Parliament transmitted revenues raised to the King and described those revenues as a “gift”.

    What is also disturbing is how SCOTUS is quick to drop the hammer on measures that cut spending and declaring such measures “Unconstitutional.” But when Congress or the Executive expand spending on objects that states never ratified the federal government to spend on, and in fact was explicitly short of votes in delegations for drafting or amending the constitution, SCOTUS defers that spending is a political discretion.


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