A little lesson in law and politics for the Fourth of July

Warning: Zero poker content.

For a long time, I have wondered this: Suppose a U. S. president had as his highest poilitical priority reducing the federal deficit, but could not get Congress to agree with him. Could the president simply refuse to spend some significant percentage of the money that Congress allocated? E.g., the president has a cabinet meeting and tells the department heads that they are each ordered to spend, say, 5% less than Congress authorized for their departments, and if they didn't, he would fire them and replace them with people who would carry out this directive.

Can the president do that?

Well, as with many things, this turns out to be a lot more complicated than it might appear. I am looking into it today because several days ago while flipping through radio stations I caught a bit of conservative talk show host Mark Levin. I missed the context of why he brought this up, but he mentioned in passing that Richard Nixon had done exactly that, and Congress deemed it to be such an abuse of power that it was on the original list of proposed articles of impeachment, though in the end it was not included among the three articles the House of Representatives passed. I was floored. I had no idea.

So now that I'm home from visiting family in Utah, and have some free time, I decided to look into this more. I'm not going to try to make this a formal explanation, nor provide links to specific sources. (Unfortunately, most of the best sources would require me to go to the law library, and the question doesn't interest me that much.) Rather, this is just sharing the basic points that I have learned in the last few hours of reading. But the two most useful pieces of research I found online were these:

http://www.law.harvard.edu/faculty/hjackson/ExecutiveSpendingPowers_8.pdf

and

http://law.onecle.com/constitution/article-2/37-impoundment-of-appropriated-funds.html

It seems that this question goes all the way back to Thomas Jefferson, and has caused occasional legal and political skirmishes between the executive and legislative branches ever since. Most have been settled by negotiation and compromise without much by way of long-term consequences.

But it really came to a head under Nixon. He claimed that he had to refuse to spend several billion dollars in order to avoid exceeding the national debt ceiling. Whether that is true or not is disputed. But he was obviously not in particularly good standing with Congress anyway, and this act of defiance was kind of the straw that broke the camel's back. In response, Congress passed the 1974 Impoundment Control Act. ("Impoundment" is the general term for the president not spending funds allocated by Congress, while "rescission" is the formal process of giving the money back to Congress.) Nixon signed it (which I don't understand, since he had claimed that impoundment was an intrinsic constitutional power of the president). As a result, if the president wants to not spend money authorized by Congress, he has to follow certain procedures, which include getting Congress to agree.

You might guess that this doesn't tend to work very well. Congress has ignored or refused most of the rescission requests that have been subsequently made. It is viewed as kind of a slap in the face. It's the president telling Congress, "You're trying to waste taxpayers' money, and I don't want to let you." Congress doesn't like that. Reagan was the only president who had a sufficiently amicable working relationship with Congress that he could get away with it most of the time he tried it. When his successor, George Bush, tried to get Congress to take back $8 billion in what he considered unnecessary spending, Congress agreed to just $2 billion of the request, but also simultaneously withdrew $22 billion of funding for items that Bush had deemed priorities. He got the message, and never tried to get permission for impoundment/rescission again.

What do the courts have to say about this? There has been only one Supreme Court case on the matter, Train v. City of New York (1975), but it was decided on the grounds of the specific language of the appropriation statute in dispute. Neither side raised constitutional, separation-of-powers arguments, so the court did not address them. Lower courts, however, have said that the executive branch does not possess the authority to refuse to spend legislatively appropriated funds. (I am intentionally glossing over the difference between funds that have been allocated and those that have been appropriated, as well as the differences in how appropriations occur depending on the kind of spending involved.)

The 1974 law actually requires the Comptroller General (i.e., the head of the GAO) to sue the president to force him to spend appropriated funds if he is refusing to do so and is not following the rescission procedures the law mandates. As far as I can tell, that has never happened. That would be one strange court case, to be sure.

The executive branch does have discretion to move funds around within any particular spending appropriation, to the extent that Congress has not specified program-by-program allocations. But the president cannot move funds between departments on his own authority.

So what would happen if a president decided to disregard the rescission procedures Congress mandated, and just not spend some significant percentage of allocated funds? Well, somebody would surely sue--the Comptroller, or somebody who was supposed to get the money and didn't, or maybe a Congressional committee with oversight responsibility for the affected department. I really have no good sense of what the Supreme Court would ultimately decide. In addition, maybe Congress would initiate impeachment proceedings, as they did for Nixon.

In any event, it would clearly be, as Mr. Obama seems to like to say these days, a BFD, and would likely turn into one of the most momentous constitutional showdowns in history. It seems unlikely to me that any president would take the matter that far, as it would alienate nearly every member of Congress and make it impossible for him to get anything else passed. I would probably try it if I were president, because I would care more about righting the disastrous fiscal course we're on than anything about what might happen to me personally or politically. But nobody who thinks like me would ever get elected, so it's kind of a moot point.

OK, children, that's your Fourth of July lesson in American history, politics, and law. Class dismissed. Go set off some firecrackers.