Construction of navy yards

According to CRA, in 1801, “President Jefferson announced that his administration was impounding funds for the construction of shipyards to allow the Republican Congress to reassess these Federalist Era appropriations. Jefferson apparently had no qualms about asserting, almost in passing, the President’s impoundment authority on the basis of policy disagreements with previous congressional appropriations.”[1]

This impoundment was not authorized by statute. But Jefferson did not impound the funds because of “policy disagreements” with Congress. Quite the opposite; he “suspended or slackened” expenditures because he suspected that spending in the prior administration had unlawfully exceeded congressional appropriations. In 1799, Congress had appropriated $50,000 for the construction of two docks.[2] But Secretary of the Navy Benjamin Stoddert, under President John Adams, had begun purchasing land for the construction of six navy yards[3], spending over $190,000 on land and improvements, apparently without congressional authorization.[4] In March 1801, Congress appropriated $500,000 for “the expenses attending six seventy-four gun ships, and for completing navy yards, docks, and wharves.”[5] This put Jefferson in a legal quandary. Congress had instructed him to “complet[e] navy yards,” without specifying the number, and perhaps unaware that land for six navy yards had been purchased instead of the two that were authorized. If Jefferson completed all six, he was potentially furthering defiance of Congress, but the same could be said of withholding the funds. In December 1801, in his first annual message to Congress, Jefferson announced that he had “suspended or slackened” the expenditure of funds for constructing navy yards so “that the Legislature might determine whether so many yards are necessary as have been contemplated.”[6] Jefferson expressed doubt that the prior administration had “perfectly understood” the “authority given by the Legislature.”[7] A congressional committee tasked with investigating the matter issued a report five months later finding that “no authority was given, by law, nor any appropriation made, except for the two docks” and “that four of the navy yards were purchased without authority, and the money misapplied which was paid for them.”[8] In 1803, Congress sold one of the navy yards that was purchased unlawfully.[9]

Construction of gunboats

According to CRA, the “most famous early impoundment precedent came in 1803, when Jefferson refused to spend a congressional appropriation of $50,000 for 15 gunboats for use on the Mississippi.”[1]

This impoundment was authorized by statute. In the underlying appropriation, Congress “authorized and empowered” Jefferson to construct “a number not exceeding fifteen gun boats” using a “sum not exceeding fifty thousand dollars.”[2] This statutory language gave Jefferson discretion to determine whether and how much of the funds to spend.[3] Jefferson’s impoundment was only temporary, however. In his fourth annual message to Congress, the president shared that “[t]he act of Congress of 1803 February 28, for building and employing a number of gun boats, is now in a course of execution to the extent there provided for.”[4]

Contingency funds

According to CRA, “‘Jefferson found it unnecessary on repeated occasions to use all of the money provided in a contingency fund’ and ‘regularly returned the unexpended balance to the Treasury.’”[1]

These impoundments were authorized by statute. In 1802, 1805, and 1808, Congress appropriated $20,000 for “defraying the contingent expenses of government.”[2] None of these statutes required expenditure of the appropriated funds, nor would it have made sense to do so given that Congress provided the funds for contingencies that might, but would not necessarily, arise. To the extent Jefferson “‘regularly returned the unexpended balance to the Treasury,’” it was because he was required to do so by a 1795 law, which provided, with some exceptions, that appropriations both unexpended and expired for more than two years “shall be deemed to have ceased and been determined; and the sum so unexpended shall be carried to an account on the books of the treasury, to be denominated ‘The Surplus Fund.’”[3]

Gunboat crews

According to CRA, “[President James] Madison too impounded funds …. In 1809, Madison announced to Congress that he was reducing the crews of gunboats in New Orleans in order to save money that Congress had appropriated.”[1]

This impoundment was authorized by statute. In the underlying appropriation, Congress “authorized and empowered” the president to employ additional midshipmen and seamen for a “period not exceeding two years,” unless he decided to discharge them sooner because “in his judgment their service may be dispensed with.”[2] Congress appropriated “a sum not exceeding four hundred thousand dollars” for this end.[3] This language indicates a clear grant of discretion by Congress both to spend less than the full amount appropriated and to employ the crews only insofar as the president, “in his judgment,” deemed it necessary.

Funds owed to contractors for mail delivery services

In 1836, Congress passed a private relief act that “directed” the solicitor of the treasury to settle the claims of four contract mail carriers for payment for their services, and “directed” the postmaster general to pay the contractors whatever amount the solicitor determined they were owed.[1] The solicitor determined the contractors were owed $161,563.89, but the postmaster general paid them only $122,102.46.[2] CRA states that this was not an impoundment, only “a contract claim against the government that was adjudicated by Congress” and “involved no discretion.”[3] However, because this incident involves the defiance of a clear statutory requirement to pay the contractors a specified sum (the amount that the solicitor of the treasury determined they were owed), this paper treats the refusal to pay the full amount as an impoundment of the unspent funds.

This nonpayment of funds made available by Congress — an impoundment — was not authorized by statute. So the Supreme Court held in Kendall v. United States ex rel. Stokes, 37 U.S. 524 (1838). After the postmaster general refused to pay the contractors the full amount they were owed, the attorney general argued before the Supreme Court that the Take Care clause granted the president, and by extension executive branch officials, the discretion to pay less than the full amount that the statute required. The Supreme Court roundly rejected that argument: “To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible.”[4] The Court then ordered the postmaster general to pay the contractors the rest of the money they were owed,[5] and the contractors received that money.[6]

Refusal to pay a widow a second pension

According to CRA, the secretary of the Navy under President Martin Van Buren impounded funds by refusing to pay a widow a second pension.[1]

This action was not an impoundment, but rather an adjudication of eligibility for a pension. On July 10, 1832, Congress made the secretary of the navy the trustee of the Navy pension fund and made it his “duty to receive applications for pensions, and to grant the same according to the terms of the acts of Congress ….”[2] On March 3, 1837, Congress passed a law entitling the widow of any officer who died serving the Navy to receive, from the pension fund, half the monthly salary the deceased officer would have been earning.[3] The same day, Congress passed a special resolution entitling Susan Decatur, the widow of a commodore, to receive a pension from the Navy.[4] Decatur applied for both pensions.[5] After consulting with the attorney general, the secretary of the navy invited Decatur to choose which pension to receive but found she was not entitled to both. Decatur elected to receive the general pension but later sued to secure the pension provided under the special resolution.[6] The Supreme Court ruled against Decatur, finding that the underlying statutes gave the Navy secretary “discretion” in adjudicating pension claims and administering the pension fund.[7] The Court held it had “no right, by mandamus, to control” the exercise of that discretion.[8] Decisions about the eligibility of individuals for particular benefits are commonplace in government. A lawful determination not to grant any such individual benefit is not considered an impoundment.

Public buildings in Illinois

According to CRA, “President Buchanan withheld funds that had been appropriated to construct public buildings in Illinois in order to punish the State’s congressional delegation for opposing the administration’s objectives. Although the action was politically unpopular, there does not appear to have been any constitutional objection raised to this impoundment.”[1]

This impoundment was not authorized by statute, but there is no indication that Buchanan offered any constitutional justification for it. In 1856 and 1857, Congress appropriated money for the construction of public buildings, including custom and court houses and post offices, in Springfield and Cairo, Illinois.[2] The 1856 appropriation “authorized and directed” the construction of those buildings.[3] The 1857 appropriation provided clearly for their construction.[4] The historical record on what occurred next is sparse. In an 1861 speech on the floor of the Senate, Senator Stephen Douglas of Illinois explained that when President Buchanan “began to quarrel with the Representatives” from Illinois in 1857, he “disobeyed the law” appropriating funding for constructing public buildings.[5] “To this hour,” Douglas said, “you could not get the law executed. Other custom-houses could be built; other post offices could be made; but not a dollar could be expended at Springfield or at Cairo in Illinois, although the law required it.”[6] While Douglas did not cite the Constitution in his objection to Buchanan’s withholding of funds, he made clear that he believed the law required expenditure of funds to construct the buildings.

River and harbor improvements

According to CRA, “[a]fter signing the Rivers and Harbors Bill of 1876, President Grant sent a special message to Congress in which he stated that he did not intend to spend the total amount appropriated because certain appropriations were for ‘works of purely private or local interest,’ and that ‘[u]nder no circumstances will I allow expenditures upon works not clearly national.’ … Pursuant to the President’s order, the Secretary of War refused to spend over half of the $5 million appropriated for internal improvements.”[1]

This impoundment was not authorized by statute, but the administration justified its action on statutory, not constitutional, grounds. The underlying appropriation stated that “[i]t shall be the duty of the Secretary of War to apply the moneys herein appropriated as far as may be by contract, except when specific estimates cannot be made for particular work, or where, in the judgment of said Secretary, the work cannot be contracted at prices advantageous to the Government ….”[2] Although this allowed, in specified circumstances, for expenditure of less than the full amount appropriated for individual river and harbor improvements, Grant went further and announced that he would not spend any money on “works of purely private or local interest.”[3] The underlying statute did not give the president the authority to do this. It was, for the most part, highly prescriptive, containing several pages of specific amounts to be spent on specific projects.[4] And yet, when pressed by Congress, the administration defended its action primarily on statutory grounds rather than claiming any constitutional right to impound. In a letter that Grant transmitted to Congress, his secretary of war, J.D. Cameron, explained that “the law and authority” for the administration’s action “are found in the act itself, which appropriates certain sums to be expended for certain purposes, under the direction of the Secretary of War, but is in no way mandatory upon him to expend the full amount.”[5] Cameron also suggested that the administration had heightened discretion to determine what river and harbor funds would be spent and when because “these appropriations are of the character of ‘indefinite appropriations;’ i.e., they do not lapse into the Treasury if unexpended at the end of two years.”[6] However, given Grant’s statement that he would “[u]nder no circumstances” allow the expenditures, it does not appear that he intended merely to defer the spending.[7]

International peace conference

According to CRA, “President Wilson declined to expend funds appropriated by Congress for holding a peace conference with the great powers aiming to end the First World War.”[1]

It is not clear that Wilson impounded these funds.[2] However, to the extent that he did, his action was authorized by statute. In 1916, Congress “authorized and requested” the president “to invite, at an appropriate time, not later than the close of the war in Europe, all the great Governments of the world to send representatives to a conference which will be charged with formulating a plan for a court of arbitration or other tribunal, to which disputed questions between nations shall be referred for adjudication and peaceful settlement.”[3] For this purpose, Congress “appropriated and set aside and placed at the disposal of the President” $200,000, “or so much thereof as may be necessary.”[4] This language gave the president discretion to determine whether to host the conference, which Congress merely “requested,” and how much of the $200,000 to spend, if any.

Holding appropriated funds in reserve to effect savings

According to CRA, “[i]n 1921, the first Director of the Budget Bureau (later the Office of Management & Budget), Charles G. Dawes, issued a circular to the Executive Branch expressly reaffirming that appropriations are to be treated as a ceiling on expenditures and not a directive to spend the full amount. Executive officers were to abide by the President’s determination of the maximum amount of an appropriation to be expended during the fiscal year, with the rest being placed in a general reserve .… This understanding was repeated by President Harding himself, who instructed his officers that ‘you should not only carefully guard against any of your activities being carried on at a rate which would require additional appropriations for the fiscal year, but should arrange to conduct your business with a minimum of expense consistent with efficient administration.’ Indeed, the President expressly instructed his officers to impound funds ‘to effect some savings from your appropriations for the coming fiscal year.’”[1]

This practice of holding funds in reserve to effect savings was, at the time, permitted by statute — provided that agencies could still accomplish applicable statutory objectives. However, CRA’s description of this matter is both incomplete and misleading. Budget Bureau Director Dawes made clear that agency efforts to save money by spending less than the full amount appropriated were never to come at the expense of “the accomplishment of the objects of legislation.”[2] Agencies, in other words, could spend less only if they could fully and faithfully execute the laws Congress passed for less money than Congress gave them. For Dawes, the laws Congress passed, not the president’s wishes, were of prevailing importance. “Much as we love the President,” Dawes explained, “if Congress, in its omnipotence over appropriations and in accordance with its authority over policy, passed a law that garbage should be put on the White House steps, it would be our regrettable duty, as a bureau, in an impartial, nonpolitical and nonpartisan way to advise the Executive and Congress as to how the largest amount of garbage could be spread in the most expeditious and economical manner.”[3] It was through the newly created Bureau of the Budget that Dawes sought to find such economies. At the start of President Harding’s term, Congress passed the Budget and Accounting Act of 1921,[4] which established the Bureau and tasked it with helping the president prepare an annual budget request to Congress.[5] To this end, the law gave the Bureau the “authority to assemble, correlate, revise, reduce, or increase the [appropriations] estimates” of executive departments and agencies.[6] In short, it focused the Bureau on proposing savings through an annual budget request to Congress. The first regulations the Bureau issued in July 1921 established a process for acquiring estimates of appropriations for the president’s budget. But those regulations also went a step further.[7] They directed agencies to identify the portion of each appropriation that is “indispensable” in executing the relevant statutory objective and “the resulting balance which may be saved under each appropriation.”[8] Agencies then had to submit that information to the president “for his approval,” and the amount “approved by the President for expenditure” under an appropriation was to be “considered as the maximum available for obligation during the fiscal year.”[9] The remaining funds were kept in a “general reserve,” and thus were blocked from expenditure.[10] It appears that Dawes believed such reserves were permissible, or at least not prohibited by law, provided that agencies accomplished Congress’s substantive statutory objectives. To establish these reserves, agencies relied on the apportionment process created in the Antideficiency Act.[11] The Antideficiency Act prohibited expenditure of “any sum in excess of appropriations made by Congress,” and required the executive branch to “apportion[]” ap

Ten percent cut in government expenditures

According to CRA, “President Hoover vigorously employed the impoundment power to decrease government spending in the midst of the Great Depression. To this end, he ordered administrations to slow down domestic program implementation, which achieved a ten percent cut in government expenditures.”[1]

There is not enough information to assess this alleged impoundment. The literature cited by CRA leads back to a single source: political scientist Joseph Cooper’s 1971 testimony to the Senate on executive impoundment of appropriated funds.[2] Cooper testified that “in 1931 President Hoover used the procedures for establishing an annual budget reserve to effect an overall 10% cut in expenditures. Letters were sent out by the Bureau of the Budget directing the departments to cut their proposed expenditures for fiscal 1932 by 10% and to set up this amount in a reserve which could not be used without approval of the President.”[3] Cooper cites no authority in support of this claim, and does not suggest that Hoover either asserted or acted based on a belief in any inherent presidential power to impound. Furthermore, Cooper provides no further detail about what expenditures were ultimately cut or whether the cuts were authorized by statute.

Various programs

According to CRA, “[t]hroughout the 1930s, President Roosevelt impounded appropriated funds for various programs, citing economic emergency.”[1]

There is not enough information to assess this alleged impoundment. CRA relies on a single source to support its claim: a law review article by Nile Stanton.[2] But Stanton spends only a single sentence on this topic — one in which he asserts that “President Roosevelt impounded funds in the 1930s in order to cope with the emergencies of economic depression and war.”[3] Stanton, in turn, cites just one source to support that sentence: a study by Professor J.D. Williams, which examined impoundments undertaken by the Roosevelt administration in the 1940s, not the 1930s.[4] It is difficult, without either a program-specific allegation or more detail in the underlying sources, to assess CRA’s claim. But in the following example, we assess a specific allegation that the Roosevelt administration impounded funds for Reserve Officers’ Training Corps units in 1938.

Three public works projects

According to CRA, “[b]etween 1940 and 1943, President Roosevelt refused to spend more than $500 million in public works funds on policy grounds.”[1]

CRA’s allegation that Roosevelt impounded $500 million Congress appropriated for public works projects leads back[2] to a single source: Professor J.D. Williams’s study entitled “The Impounding of Funds by the Bureau of the Budget.”[3] Williams provides no source for that figure, but highlights specific impoundments of funds Congress appropriated for a levee near Tulsa, Oklahoma ($513,000); a flood control reservoir in Markham Ferry, Oklahoma ($1.5 million); and the construction of two airports in Nevada ($800,000).[4] These impoundments, totaling $2.813 million, are analyzed below. None were authorized by statute. Before proceeding to that analysis, some context is important. In successive budget messages to Congress, President Roosevelt stated that he would defer, and significantly restrict expenditures on, construction projects that interfered with or were not essential to the war effort.[4] To carry this out, the Bureau of the Budget used the apportionment process established in the Antideficiency Acts of 1905 and 1906[5] to place funds for those projects in reserve, blocking their expenditure.[6] This practice was a departure from how the Bureau previously used the apportionment process, which was to prevent deficiencies (i.e., expenditure in excess of an appropriation) and to find cost savings where a program could be executed as Congress intended without expending the full amount Congress had appropriated.[7] “The Bureau of the Budget,” its first director wrote, “is simply a business organization whose activities are devoted constantly to the consideration of how money appropriated by Congress can be made to go as far as possible toward the accomplishment of the objects of legislation.”[8] In other words, while the Bureau strove to save money, doing so was never to come at the expense of faithfully executing the laws Congress enacted. During World War II, Roosevelt took a different approach, using the apportionment process not merely to find savings but to block an array of enacted projects, such as those listed above. This pattern drew considerable criticism from congressional appropriators, who demanded to know the legal basis for the Bureau’s impoundments.[9] “Now, where is the law,” Senator John Overton asked in a 1943 hearing, “that authorizes either the Executive or the Bureau of the Budget to impound funds that have been appropriated by Congress?”[10] In a memorandum to the Senate Appropriations Committee, the Bureau outlined its answer.[11] While it argued that the Antideficiency Act permitted impounding funds to effect savings, the Bureau conceded that no “express enactment” allowed the president to block “projects that have been authorized and appropriated for if he does not consider them of important value to the military.”[12] Such actions, the Bureau asserted, “must be viewed … as an exercise by the President (or in his behalf) of the ultimate responsibility and authority vested in him as Chief Executive by article II, se

Public works project #1: Levee project

Levee project near Tulsa, Oklahoma[1]

This impoundment was not authorized by statute. But in response to pressure from Congress and the War Production Board, the Bureau of the Budget released the funds before they expired, allowing the project to move forward. In the Flood Control Act of 1941, Congress authorized an array of construction projects for “the control of destructive floodwaters,” and provided that the projects “shall be prosecuted as speedily as may be consistent with budgetary requirements, under the direction of the Secretary of War and the supervision of the Chief of Engineers ….”[2] Among the projects Congress “authorized” was a levee on the Arkansas River “in the immediate vicinity of Tulsa and West Tulsa, Oklahoma.”[3] In the Third Supplemental National Defense Appropriation Act of 1942 and the War Department Civil Appropriation Act of 1943, Congress included $300,000 and $213,000, respectively, for that project.[4] The former appropriation was “to remain available until expended”; the latter was an annual appropriation set to expire on June 30, 1943.[5] In early 1942, the Bureau of the Budget placed those funds in reserve, blocking their expenditure.[6] This action followed a finding by the War Production Board that the Tulsa project could not “properly be described as essential to the national defense.”[7] Nothing in the 1941 Flood Control Act, the underlying appropriations acts, or the Antideficiency Act permitted the Bureau’s impoundment of the entire amount Congress appropriated for the levee project, which Congress had provided “shall be prosecuted.”[8] The Bureau of the Budget conceded as much in a memorandum it sent to the Senate Appropriations Committee. This impoundment, the Bureau wrote, “was not taken in pursuance of any express enactment, and must be viewed therefore as an exercise by the President (or in his behalf) of the ultimate responsibility and authority vested in him as Chief Executive by article II, section 1, of the Constitution, an authority which includes general administrative control over the officers of the executive departments in the performance of their duties.”[9] Despite this pronouncement, developments on the Arkansas River and in Congress ultimately forced the Bureau to change course. After the Arkansas River overflowed in June 1942, forcing the closure of a nearby steel mill that handled war contracts, pressure built on the Bureau to release the Tulsa funds.[10] Senator Elmer Thomas, a member of the Senate Appropriations Committee, threatened to introduce an amendment requiring the expenditure of the funds.[11] And days later, the War Production Board both deemed the Tulsa project “necessary for war purposes” and notified Congress of its reversal.[12] In October 1942, the Bureau released the money, allowing the project to move forward.[13] Although the Bureau released the funds well before they were set to expire, the Bureau’s hold on the funds violated the authorizing statute’s requirement that the flood control projects

Public works project #2: Flood control reservoir

Flood control reservoir in Markham Ferry, Oklahoma[1]

This impoundment was not authorized by statute. However, the Roosevelt administration justified its action narrowly on the ground that the project was not essential to the war effort, and ultimately released the impounded funds to pay for other flood control projects in the next fiscal year. In the Flood Control Act of 1941, Congress authorized an array of construction projects for “the control of destructive floodwaters,” and provided that the projects “shall be prosecuted as speedily as may be consistent with budgetary requirements, under the direction of the Secretary of War and the supervision of the Chief of Engineers ….”[2] Among the projects Congress authorized was a flood control reservoir in Markham Ferry, in Oklahoma’s Grand River Basin.[3] In the Third Supplemental National Defense Appropriation Act of 1942, Congress included $1.5 million for that project under the “[f]lood control, general” heading.[4] The money was “to remain available until expended.”[5] Despite the Flood Control Act’s requirement that the authorized projects “shall be prosecuted,”[6] the Bureau of the Budget impounded the Markham Ferry funds and blocked the construction of that project.[7] This action was not authorized by the Flood Control Act, the underlying appropriation act, or the Antideficiency Act. Bureau of the Budget Director Harold Smith justified the impoundment on the grounds that the project conflicted with national defense priorities: “The manufacture of hydroturbines (which would be needed were Markham Ferry to be undertaken) is in direct competition with the manufacture of guns and forgings.”[8] Although the Bureau ultimately released the $1.5 million, it was used “to supplement the regular [flood control, general] appropriation for fiscal year 1943 for application to other projects in the program for that year,” not to construct the Markham Ferry reservoir.[9]

Public works project #3: Nevada airports

Construction of two airports in Nevada[1]

This impoundment was not authorized by statute, but the administration justified it narrowly on the need to pursue only those construction projects that were necessary to the war effort and the airports ultimately were built. In 1942, Congress passed an appropriations act providing that “not to exceed” $800,000 “shall be available for the establishment of landing areas” until June 30, 1943.[2] Although neither the statute nor the accompanying committee reports specified where these airport landing areas were to be built,[3] the Bureau of the Budget acknowledged in testimony before Congress that it understood the provision to refer to the proposed construction of airports in Lovelock and Winnemucca, Nevada.[4] The Bureau nevertheless placed those funds in reserve and refused to release them even after receiving requests to do so from the Commerce Department in 1942 and 1943.[5] In its responses denying those requests, the Bureau of the Budget stressed that, in order to release the funds, it needed to receive certifications that construction of the airports was “necessary for the prosecution of the war.”[6] When the Commerce Department turned to the Army for that certification, the Army denied it, finding that “[a]t the present time no military necessity has developed that requires construction or use of critical materials at either of these locations.”[7] Thus, close to six months after Congress appropriated funds for the airports, they remained impounded. This action was not authorized by statute. Although that law gave the administration discretion in determining the exact amount to spend on the airports — “not to exceed $800,000” — it explicitly provided that some amount beneath that cap “shall be available for the establishment of landing areas.”[8] In testimony before Congress, the Budget Bureau conceded that “there is no authority in law specifically authorizing the Bureau of the Budget to place in a budget reserve any part of an appropriation made available to any department or agency of the Government.”[9] Thus, although congressional testimony from 1949 confirms that the airports ultimately were built,[10] there was no statute authorizing the Bureau’s impoundment.

Civilian Conservation Corps

According to CRA, “[i]n the early 1940s, the administration ‘ordered impoundment of … $95 million which had been appropriated for the Civilian Conservation Corps’ surplus labor force ….’”[1]

This impoundment was authorized by statute. In 1941, Congress appropriated a total of $246,960,000 for the Civilian Conservation Corps.[2] Due to declining enrollment in the Corps,[3] Congress inserted a provision in the appropriation providing that: “In the expenditure of funds appropriated herein under the heading ‘Civilian Conservation Corps,’ the over-all cost per enrollee per year shall not exceed $1,000 on the basis of a total enrollee appropriated strength herein of two hundred and thirty-two thousand five hundred enrollees: Provided, That irrespective of the total number of enrollees either authorized or actually enrolled, in no event shall there be expended more than $1,000 per actual enrollee per year.”[4] Following this statutory guidance and in accordance with a Corps enrollment of roughly 148,000 youths, the Bureau of the Budget placed $95,000,000 in reserve and made approximately $150,000,000 available to the Corps to spend.[5] Because Congress provided that “in no event shall there be expended more than $1,000 per actual enrollee per year,” this impoundment was authorized by statute.

Funds for the Department of Agriculture

According to CRA, “[i]n the early 1940s,” the Roosevelt administration impounded funds appropriated for “the Surplus Marketing Corporation.”[1]

Though there was no Surplus Marketing Corporation, it appears that this is a reference to funds originally appropriated for the Surplus Marketing Administration, the impoundment of which was not authorized by statute. Nevertheless, the administration defended its action on statutory, not constitutional, grounds. In February 1942, President Roosevelt consolidated the Surplus Marketing Administration, the Agricultural Marketing Service, and the Commodity Exchange Administration into the Agricultural Marketing Administration in the Department of Agriculture.[2] In January 1943, the Bureau of the Budget testified that it had placed $38,520,919 appropriated for the Agricultural Marketing Administration in reserve.[3] The Bureau did not specify from which appropriation or appropriations the money placed in reserve came. But Senator Richard Russell wrote to the president “criticizing [t]he Budget Bureau’s attempt to curtail … the food distribution programs of the Agricultural Marketing Administration.”[4] This seems most likely to be a reference to a $35 million appropriation for the Surplus Marketing Administration for fiscal years 1942 and 1943, provided to “procure, transport, and distribute agricultural and other commodities and supplies to meet the emergent requirements of the civilian population of the Territories and possessions of the United States ….”[5] This spending appears to be mandatory under the language of the appropriation — which provides a particular sum to be spent within a specific timeframe on the listed statutory objectives, without any discretionary language.[6] The impoundment of this appropriation therefore was not authorized. However, President Roosevelt sent a reply to Senator Russell’s letter defending the Budget Bureau’s practice of placing funds in reserve, and arguing that it was justified based on the need to comply with the Antideficiency Act and to achieve savings where possible.[7]

Civilian pilot training program

According to CRA, “[i]n the early 1940s,” the Roosevelt administration impounded funds for “civilian pilot training projects.”[1]

This impoundment was not authorized by statute, but the Bureau of the Budget ultimately released more than half of the impounded funds. In 1939, Congress passed the Civilian Pilot Training Act, which authorized the Civil Aeronautics Authority — later the Civil Aeronautics Administration — to train civilian pilots “within the limits of available appropriations made by the Congress.”[2] In 1941, Congress appropriated $25 million for “[a]ll necessary expenses” in carrying out that program.[3] In 1942, the Bureau of the Budget froze $1.13 million of that appropriation.[4] As the administrator for civil aeronautics, Brigadier General D.H. Connolly, confirmed in testimony before Congress, this withholding forced the Civil Aeronautics Administration to “discontinue some primary training over the country.”[5] Nothing in the text of the 1939 Civilian Pilot Training Act or the 1941 appropriation permitted this impoundment.[6] Although the Bureau of the Budget argued during the Roosevelt administration that the Antideficiency Act gave it the authority to hold appropriated funds in reserve to effect savings,[7] nothing in that law provided authority to effect savings where doing so would harm the execution of the programs that Congress had funded. Because the Bureau’s 1942 impoundment of civilian pilot training funds forced the curtailment of that training program, the Antideficiency Act could not have provided statutory support for the withholding. Nonetheless, it appears the Bureau of the Budget ultimately released some of the $1.13 million it impounded, as the administration reported in a subsequent budget request to Congress that only $511,372 of the $25 million Congress appropriated for civilian pilot training for fiscal year 1942 remained unobligated.[8]

Kings River project

According to CRA, President Harry Truman “temporarily impounded funds appropriated to develop water resources as part of the Kings River Project in order to study the prospective costs of the project.”[1]

This impoundment was expressly authorized by statute. Congress explicitly forbade the president from spending this appropriation until the proper study had been completed. The appropriation act provided that “none of the appropriation for the Kings River and Tulare Lake project, California, shall be used for the construction of the dam until the Secretary of War has received the reports as to the division of costs between flood control, navigation, and other water uses ….”[2] President Truman acknowledged that he was following Congress’s express instructions when he temporarily withheld expenditures until reports from the various agencies arrived and were analyzed: “[I]n view of the legislative history of the provisos in the Kings River item, and in view of the disadvantageous position in which the Government would be placed if repayment arrangements were unduly postponed, I am asking the Director of the Budget to impound the funds appropriated for construction of the project, pending determination of the allocation of costs and the making of the necessary repayment arrangements.”[3] In January 1947, the secretary of war notified Truman that the required reports on the allocation of costs for the project were complete.[4] After Truman submitted the reports to Congress in February 1947,[5] he released the funds for the Kings River project — long before they were set to expire in June 1947.[6]

National Guard

According to CRA, President Truman impounded half of the $110 million Congress appropriated for the in 1946.[1]

This impoundment was ultimately authorized by statute. In late 1946 or early 1947, the Budget Bureau placed $60 million of the National Guard’s $110 million appropriation in reserve pending Congress’s consideration of a bill to transfer a substantial portion of that appropriation to the “Finance Service, Army” appropriation account.[2] In May 1947, Congress passed a law authorizing the transfer of up to $55.1 million from the National Guard appropriation to the Army’s Finance Service.[3] Ultimately, $48.2 million was transferred.[4] As Major General Kenneth Cramer, then the chief of the National Guard Bureau, told the House Appropriations Committee: “the initiation of the [transfer] action was executive in character” but “it was subsequently ratified by Congress.”[5]

Ten additional Air Force groups

According to CRA, this impoundment contains “[t]he most notable examination of the constitutional issue.”[1] In 1949, after an intense debate between Congress and the Department of Defense over the appropriate size of the Air Force, Congress appropriated funds to support 58 Air Force groups over the White House’s requested 48.[2] President Truman announced he was placing the funds for those additional groups in reserve.[3]

This impoundment was authorized by statute, but the Truman administration justified it on constitutional grounds. In the 1950 National Military Establishment Appropriation Act, Congress appropriated funds for the Air Force, above the administration’s request, to support an expansion of the Air Force from 48 to 58 groups.[4] However, the enacted legislation gave the administration discretion not to spend the additional funds. This was the result of a compromise between the House, which sought the additional funds and supported the expansion to 58 groups, and the Senate, which opposed the funds and the expansion. In its draft 1950 National Military Establishment Appropriation bill, the House added funds for additional Air Force groups to seven appropriations: (1) construction of aircraft and related procurement; (2) special procurement; (3) maintenance and operations; (4) military personnel requirements; (5) research and development; (6) salaries and expenses, administration; and (7) contingencies.[5] The Senate opposed each of these increases.[6] In conference, the managers for the House and Senate arrived at a compromise. The final bill would include the higher amounts the House proposed for five appropriations — construction of aircraft and related procurement (“an amount not to exceed $1,992,755,000” for contracts), special procurement ($134,477,000), maintenance and operations ($1,199,792,000), research and development ($233,000,000, “to remain available until expended”), and contingencies ($15,200,000, “[f]or emergencies and extraordinary expenses, ... to be expended on the authority or approval of the Secretary of the Air Force”) — and the lower amounts the Senate proposed for two appropriations, military personnel requirements ($1,201,000,000) and salaries and expenses, administration ($58,425,000).[7] However, because the Senate continued to oppose the House-urged funding increases, the final bill also included a provision — section 702 — reducing the amount the Air Force actually could spend on special procurement and maintenance and operations. Section 702 provided that “amounts to be obligated or expended” under those headings “shall not exceed” $125,797,000 and $1,143,858,000, respectively.[8] In October 1949, Truman signed the 1950 National Military Establishment Appropriation Act into law and announced that he was “directing the Secretary of Defense to place in reserve the amounts provided by the Congress … for increasing the structure of the Air Force.”[9] These reserves appear to have consisted of the contract authority the House had included for “construction of aircraft and related procurement.” Truman held $726,151,000 of that amount in reserve “as a result of [his] determination not to expand the Air Force above the 48-group level.”[10] Because the 1950 National Military Establishment Appropriation Act “authorized” — but did not require — contracts “in an amount not to exceed $1,992,755,000,”[11] this impoundment was permi

U.S.S. United States aircraft carrier

In 1949, Truman’s secretary of defense canceled the construction of a Navy aircraft carrier, the U.S.S. United States, at the urging of the Joint Chiefs of Staff and with the approval of the chairs of the House and Senate Armed Services Committees and the president.[1] CRA claims that Truman impounded funds Congress appropriated for the U.S.S. United States.[2]

Truman did not impound funds for the U.S.S. United States. In 1948, Congress appropriated funds for the “new postwar shipbuilding program”[3] under the headings “[c]onstruction of ships” and “[o]rdnance for new construction.”[4] These appropriations were “to remain available until expended.”[5] Although neither enacted appropriation directly named or referenced the U.S.S. United States, the Senate committee report accompanying the 1949 Department of the Navy Appropriation Act mentioned that Congress included funds “for beginning work on the new 65,000-ton superaircraft carrier” — a reference to the United States — “as well as [for] conversions to other types of vessels ….”[6] Neither the Senate nor the House committee reports specified a particular amount they wanted to be spent on the carrier.[7] In 1948 and early 1949, the Navy began constructing the carrier, laying its keel on April 18, 1949.[8] On April 23, Defense Secretary Johnson sent a letter to the secretary of the navy announcing his decision to cancel further construction of the carrier.[9] Johnson later testified that he did so at the urging of the Joint Chiefs, and after consulting with and securing the approval of the chairs of the House and Senate Armed Services Committee.[10] Because no law required the construction of the carrier or the expenditure of a particular sum on it, and because we found no evidence that money intended for the carrier was withheld, it appears that Defense Secretary Johnson did not, in canceling the carrier, impound funds intended for it. Evincing its approval of the cancellation, Congress did not appropriate further funds for the U.S.S. United States. Rather, as a Senate Appropriations Committee noted in a report, the 1950 “[c]onstruction of ships” and “[o]rdnance for new construction” appropriations were “intended to permit the Navy to undertake a substitute shipbuilding program to replace the item approved in the 1949 appropriation bill for the Navy for the consideration of a flush-deck carrier.”[11]

Construction of veterans’ hospitals

In 1949, President Truman temporarily withheld funds allocated to build new veterans’ hospitals after World War II to allow the Veterans Administration to determine where to best locate the new hospitals.”[1] CRA refers to this as a “high profile impoundment.”[2]

This impoundment was expressly authorized by statute. In 1931, Congress authorized the construction of new Veterans Administration hospitals and facilities and provided that such construction “shall be done in such manner as the President may determine,” and that the “location and nature” of the new buildings “shall be in the discretion of the Administrator of Veterans’ Affairs, subject to the approval of the President.”[3] This authorizing law gave the president ultimate authority to control future veterans’ hospital construction. During Truman’s presidency, appropriations acts providing funding for veterans’ hospital construction were governed by and explicitly referenced the 1931 authorizing law, giving Truman the authority to determine whether and how to spend the hospital construction funds.[4] Several of these appropriations acts contained additional permissive language authorizing obligations “not exceeding” a particular amount, subject to “the approval of the President.”[5] Years later, a former administrator of veterans’ affairs who testified to Congress agreed that Truman’s action was an example of an impoundment authorized by statute (though in his view, this statute was the Antideficiency Act).[6]

Domestic programs during the Korean War

According to CRA, Truman impounded appropriations for numerous “domestic programs in order to focus on the Korean War effort.”[1]

This impoundment was expressly authorized by statute. Section 1214 of the 1950 Omnibus Appropriations Act directed the president to “reduce[] in the amount of not less than $550,000,000” appropriations, reappropriations, and contract authorizations provided for in that act.[2] In a 1973 congressional hearing, both then Senator Hubert Humphrey and Comptroller General Elmer Staats cited this episode as an example of Congress authorizing the president to impound funds, in contrast to Nixon’s impoundments contrary to statute.[3]

Increase in Marine Corps personnel

According to CRA, in 1956, President Dwight Eisenhower “impounded $46.4 million appropriated by Congress to increase Marine Corps personnel.”[1]

This impoundment was not authorized by statute, but the administration did not justify it on constitutional grounds. In 1955, Congress appropriated $650,244,000 for “Military Personnel, Marine Corps” for fiscal year 1956; $290,190,000 for “Marine Corps Procurement,” which was “to remain available until expended”; and $181,605,000 for “Marine Corps Troops and Facilities” for fiscal year 1956.[2] These enacted amounts included $33.8 million above the administration’s request for Marine Corps military personnel, $8.9 million above the administration’s request for Marine Corps troops and facilities, and $3.7 million above the administration’s request for Marine Corps procurement.[3] Congress apparently provided this additional $46.4 million to support an “[i]ncrease in Marine Corps strength.”[4] Although the enacted appropriations did not specify a particular number of Marine Corps personnel, it is relatively clear from the increase in funds for “Military Personnel” and “Marine Corps Troops and Facilities,” and that the funds were available for only a single fiscal year (1956), that Congress intended to effect some increase in the size of the Marine Corps during fiscal year 1956. But the Corps appears not to have spent any of the additional funds.[5] Despite this, the administration in no way suggested that it had any constitutional right to withhold these funds. Rather, a military official suggested that the Marine Corps had simply applied the funds as it had done in previous years, and that the Corps had fewer personnel than previously estimated. In a 1956 hearing before the House Appropriations Committee, Marine Corps Fiscal Director Maj. Gen. David Shoup explained that the annual Marine Corps military personnel appropriation “estimate is a mathematical application of rates of pay and allowances prescribed by law to be paid or furnished under varied conditions and situations …. The [fiscal year] 1956 estimate upon which the appropriation was based provided for an end strength of 215,000,” but the actual end strength amounted to 201,000.[6] “The unobligated amount,” Shoup continued, “is due principally to a lower personnel plan.”[7]

Defense cutbacks

According to CRA, “[i]n 1957, [Eisenhower] ‘issued a series of orders and announcements for cutbacks and stretchouts in defense programs.’ In 1958, he ‘asked agency heads to delay and reduce expenditures to avoid the possibility of having to borrow money.’”[1]

There is not enough information to assess these alleged impoundments. CRA appears to refer to actions the Eisenhower administration took in late 1957 and early 1958 to delay or temporarily reduce expenditures to avoid breaching the statutory debt limit.[2] However, it is not clear from CRA’s paper; the secondary sources it cites;[3] a recent Congressional Research Service report on the debt limit, which references the episode;[4] House and Senate committee reports accompanying the 1958 law raising the debt limit;[5] or congressional testimony on this subject from senior administration officials in 1958 and 1959[6] what specific actions the administration took and which programs were affected. The only information that is clear from these sources is high level: the administration delayed or temporarily reduced some expenditures, including at the Pentagon, to avoid breaching the statutory debt limit[7] and released those funds when Congress raised the debt limit in early 1958.[8] However, whether the referenced actions were authorized by statute or undertaken in defiance of it is impossible to determine without a clear accounting of what specific actions took place and when.

Hound Dog missile program

According to CRA, “[i]n 1959, [Eisenhower] impounded $48 million in Hound-dog missile funds ….”[1]

This impoundment was authorized by statute and did not impair the Air Force’s continued development of the Hound Dog missile. In 1958, Congress included funding for the Hound Dog missile program in an appropriation entitled “Aircraft, Missiles and Related Procurement,”[2] which provided a lump sum of over $6.6 billion to the Department of the Air Force.[3] The enacted appropriations language made no mention of any particular aircraft or missile program, instead providing the Air Force with discretion to allocate the appropriated funds among the listed purposes, which included “construction, procurement, and modification of aircraft, missiles, and equipment.”[4] Moreover, the language specified that the $6.6 billion appropriation was to “remain available until expended,”[5] meaning that the Air Force did not have to spend the full amount of the appropriation in that single fiscal year. Although Congress noted in committee reports that it included $48 million above the administration’s request for the Hound Dog,[6] Air Force Secretary James Douglas testified in a 1959 hearing that these additional funds “were not apportioned” — meaning that the Air Force did not spend them.[7] Because of the discretion granted in the text of the Air Force’s “Aircraft, Missiles and Related Procurement” appropriation, and the absence of a requirement to spend a particular sum on the Hound Dog, the Air Force was not required to spend the additional $48 million Congress had included. But the Air Force did continue work on the program. Indeed, as President Eisenhower noted in a 1959 budget message to Congress, “the production of the Hound Dog air-to-ground missile has been accelerated.”[8]

Minuteman missile program

According to CRA, “[i]n 1959, [Eisenhower] impounded … $90 million in Minuteman funds ….”[1]

This impoundment was authorized by statute. In 1958, Congress included funding for the Minuteman intercontinental ballistic missile program in Air Force appropriations entitled “Aircraft, Missiles and Related Procurement” and “Research and Development.”[2] The former appropriation provided $6.6 billion, “to remain available until expended,” for “construction, procurement, and modification of aircraft, missiles, and equipment.”[3] The latter appropriation provided $743 million, “to remain available until expended,” for “expenses necessary for basic and applied scientific research and development.”[4] Neither appropriation made specific mention of the Minuteman, instead providing the Air Force with discretion to allocate the funds among the purposes listed in each appropriation.[5] However, House and Senate Appropriations Committee reports show that the committees included $75 million above the administration’s request for the Minuteman in the “Aircraft, Missiles and Related Procurement” appropriation and $15 million above the administration’s request for the Minuteman in the “Research and Development” appropriation.[6] In a 1959 hearing, Air Force Secretary Douglas testified that while the Bureau of the Budget did not apportion the additional $90 million to the Air Force, the Air Force was able to “more than accomplish” the goal of accelerating the Minuteman program by reprogramming funds for it.[7] As the Defense Department confirmed even more explicitly in subsequent testimony to Congress: “Funds to carry on the MINUTEMAN in fiscal year 1959 on the expanded scale proposed by the Congress were provided by the Air Force through reprogramming funds no longer required for other projects.”[8] Although the Air Force did not spend the specific $90 million Congress included for the Minuteman in its “Aircraft, Missiles and Related Procurement” and “Research and Development” appropriations in fiscal year 1959, Air Force Secretary Douglas confirmed that these funds would be “applied against the 1960 budget.”[9] The text of these appropriations gave the Air Force the discretion to do this. Because both appropriations were “to remain available until expended,” the Air Force was not required to spend the full amount appropriated in a single fiscal year. And because neither appropriation mentioned, let alone required, the expenditure of a particular sum on the Minuteman, the Air Force ultimately had discretion in the amount it chose to spend on that project, among the other projects funded by the indefinitely available “Aircraft, Missiles and Related Procurement” and “Research and Development” appropriations.

KC-135 jet tankers

According to CRA, “[i]n 1959, [Eisenhower] impounded … $55.6 million for KC-135 tankers ….”[1]

This impoundment was authorized by statute. In 1958, Congress included funding for additional KC-135 jet tankers in Air Force appropriations entitled “Aircraft, Missiles and Related Procurement” and “Procurement Other Than Aircraft and Missiles.”[2] The former appropriation provided over $6.6 billion, “to remain available until expended,” for “construction, procurement, and modification of aircraft, missiles, and equipment.”[3] The latter appropriation provided over $2.22 billion, “to remain available until expended,” for “procurement and modification of equipment (including ground handling equipment for aircraft and missiles, ground guidance and electronic control equipment, and ground electronic and communication equipment).”[4] Neither appropriation made specific mention of the tankers, instead providing the Air Force with discretion to allocate the funds among the purposes that each appropriation listed.[5] However, subsequent Defense Department testimony to Congress indicates that Congress included $51.6 million above the administration’s request for KC-135 tankers in the “Aircraft, Missiles and Related Procurement” appropriation and $3.9 million above the administration’s request for KC-135 tankers in the “Procurement Other Than Aircraft and Missiles” appropriation.[6] In a 1959 hearing, Air Force Secretary Douglas testified that the service used none of these additional funds.[7] The text of the enacted “Aircraft, Missiles and Related Procurement” and “Procurement Other Than Aircraft and Missiles” appropriations gave the Air Force the discretion not to spend those additional funds. Neither enacted appropriation mentioned the tankers, let alone required the expenditure of a particular sum on their procurement. And both appropriations were “to remain available until expended,” meaning the Air Force was not required to spend the full amount of the appropriation in a single fiscal year.[8] Moreover, it appears that the administration impounded only the additional funds Congress provided for the tankers. Production of the tankers otherwise continued apace. In fact, in Jan. 1959, President Eisenhower noted, in apparent reference to the KC-135, that the “dispersal program for our strategic bomber force and its supporting tankers is nearing completion.”[9]

Strategic airlift aircraft

According to CRA, “[i]n 1959, [Eisenhower] impounded … $140 million for strategic airlift aircraft.”[1]

This impoundment was authorized by statute, and appears to have involved only the temporary “postponement” of spending the $140 million to the following fiscal year.[2] This action was well within the Air Force’s discretion, as the governing appropriations act specified that the funds would remain available until expended. In 1958, Congress included funding for “strategic airlift aircraft” in Air Force appropriations entitled “Aircraft, Missiles and Related Procurement,” and “Procurement Other Than Aircraft and Missiles.”[3] The former appropriation provided over $6.6 billion, “to remain available until expended,” for “construction, procurement, and modification of aircraft, missiles, and equipment.”[4] The latter appropriation provided over $2.22 billion, “to remain available until expended,” for “procurement and modification of equipment (including ground handling equipment for aircraft and missiles, ground guidance and electronic control equipment, and ground electronic and communication equipment).”[5] Neither appropriation made specific mention of the strategic airlift aircraft, instead providing the Air Force with discretion to allocate the funds among the purposes listed in each appropriation.[6] However, subsequent Defense Department testimony to Congress indicates that Congress included $136.1 million above the administration’s request for strategic airlift aircraft in the “Aircraft, Missiles and Related Procurement” appropriation and $3.9 million above the administration’s request for strategic airlift aircraft in the “Procurement Other Than Aircraft and Missiles” appropriation.[7] In a 1959 hearing, Air Force Secretary Douglas testified that the service planned to “postpone[]” spending the “larger part of the $140 million … to the 1960 from the 1959 buy period.”[8] The text of the enacted “Aircraft, Missiles and Related Procurement” and “Procurement Other Than Aircraft and Missiles” appropriations gave the Air Force the discretion to do this. Both appropriations provided that the funds were “to remain available until expended,” meaning the Air Force was not required to spend them in full in a single fiscal year.[9]

Nike-Zeus antimissile system

According to CRA, Eisenhower “withheld … $137 million for Nike-Zeus anti-missile program funds.”[1] Eisenhower confirmed this in his fiscal year 1961 budget message to Congress, where he noted that until further testing could be conducted, “the $137 million appropriated last year by the Congress for initial production steps for the Nike-Zeus system will not be used.”[2]

This impoundment was authorized by statute. In 1959, Congress added $137 million to an appropriation entitled “Procurement of Equipment and Missiles, Army.”[3] The Defense Department indicated that it would spend the additional money on the Nike-Zeus missile system,[4] but the enacted appropriation did not require it to do so.[5] Indeed, the text of the “Procurement of Equipment and Missiles, Army” appropriation stated that the funds in that category were to “remain available until expended,” meaning that the Army was not required to spend the full amount of the appropriation in that fiscal year.[6] For these reasons, the underlying statute gave Eisenhower discretion to withhold the additional funds. However, in his fiscal year 1961 budget message to Congress, Eisenhower made clear that he withheld the funds not to thwart Congress’s will, but because he thought the Nike-Zeus technology “should be carefully tested before production is begun.”[7] Eisenhower thus “recommend[ed] sufficient funds in [his fiscal year 1961] budget to provide for the essential phases of such testing.”[8] Congress subsequently “agreed to limit the program to research and development,”[9] including funds for the Nike-Zeus system in its fiscal year 1961 defense appropriation bill only under the Army’s “Research, Development, Test, and Evaluation” appropriation.[10]

Nuclear-powered carrier

According to CRA, Eisenhower “withheld $35 million for nuclear-powered carrier procurement ….”[1]

This impoundment was authorized by statute. In 1959, Congress provided $1.3 billion for naval shipbuilding in an appropriation entitled “Shipbuilding and Conversion, Navy.”[2] The appropriation’s text made no mention of a nuclear-powered carrier,[3] but Defense Department testimony to Congress indicates that Congress included $35 million within that appropriation for “advance procurement for [a] nuclear-powered carrier.”[4] The department ultimately declined to spend that money.[5] But the text of the “Shipbuilding and Conversion” appropriation did not require it to do so. The enacted appropriation did not mention a nuclear-powered carrier, let alone specify an amount for its procurement. Instead, it allowed the president to allocate the appropriated funds among the purposes listed in the statute, which included “construction, acquisition, or conversion of vessels” and “procurement of critical long lead time components and designs for vessels to be constructed or converted in the future.”[6] Moreover, the appropriation specified that all of the funds for “Shipbuilding and Conversion” were to “remain available until expended,”[7] meaning that the Navy did not have to spend the full amount of that appropriation in that single fiscal year.

B-70 strategic bomber

According to CRA, “President Kennedy similarly impounded significant military funds. In 1961, Congress appropriated $380 million for the —$180 million more than the White House requested in its budget. Kennedy impounded the additional $180 million because he judged that ICBM technology eliminated the need for the additional bombers. Congressman Vinson, chair of the House Armed Services Committee, was furious and drafted language for the next year’s appropriation stating ‘that the Secretary of the Air Force, as an official of the executive branch, is directed, ordered, mandated, and required to utilize the full amount of the $491 million authority granted’ for the B-70 bomber …. President Kennedy forcefully rebuffed Vinson’s attempt to encroach upon his executive power. He argued that the language should be modified from ‘directed’ to ‘authorized’ because such language is ‘more clearly in line with the spirit of the Constitution.’”[1]

This impoundment was authorized by statute. In 1961, President Kennedy requested that Congress appropriate $220 million for the development of a B-70 (later RS-70) bomber.[2] Congress instead included $400 million for the B-70 in a broader $2,403,260,000 appropriation for “Research, Development, Test, and Evaluation, Air Force.”[3] The Defense Department refused to spend the additional $180 million that Congress made available, deeming it unnecessary to advance continued research on and testing of the B-70,[4] but nothing in the statute required it to spend the additional amount. Although the conference committee’s report stated that “$400,000,000 of this [Research, Development, Test, and Evaluation, Air Force] appropriation shall be available for the B-70 program,”[5] the text of the enacted “Research, Development, Test, and Evaluation, Air Force” appropriation did not mention, let alone require, the expenditure of a particular sum on the B-70.[6] Moreover, because the “Research, Development, Test, and Evaluation, Air Force” appropriation was “to remain available until expended,”[7] the amount provided for it did not have to be spent in a single fiscal year. The underlying appropriation statute thus gave the Pentagon discretion not to spend the full amount Congress had appropriated. CRA makes much of a subsequent exchange between President Kennedy and Representative Carl Vinson, the chair of the House Armed Services Committee, about the B-70.[8] Vinson sought to add language to a 1962 defense authorization bill that would have “directed” the Air Force secretary “to utilize an authorization in an amount not less than $491,000,000 during Fiscal Year 1963 to proceed with production planning and long leadtime procurement for an RS-70 weapon system.”[9] Kennedy objected to the use of the word “directed,” suggesting instead that “the word ‘authorized’ would be more suitable to an authorizing bill (which is not an appropriation of funds) and more clearly in line with the spirit of the Constitution.”[10] Although Kennedy raised constitutional objections to Vinson’s language — “insist[ing]” in a letter to Vinson “upon the full powers and discretions essential to the faithful execution of my responsibilities as President and Commander in Chief, under article II, sections 2 and 3, of the Constitution”[11] — he also emphasized the importance of a “spirit of comity” between the executive and legislative branches and offered that Defense Secretary Robert McNamara was willing to “reexamine the RS-70 program.”[12] In other words, Kennedy made clear that he did not seek to thwart Congress’s will in pursuing and funding the RS-70. In the end, lawmakers acceded to Kennedy’s request to change the text of the defense authorization bill. As one scholar has written, “Congress ultimately omitted mandatory language from the bill, giving Kennedy no occasion to defy any statutory objective.”[13] The final bill merely “authorized” an appropriation of $491 million “f

Watershed projects

According to CRA, in 1965, President Lyndon Johnson “impounded funds for watershed projects in order to voice his opposition to the legislative procedures used to appropriate the funds. Congress refused to change its procedures and the funds remained impounded for the remainder of the Johnson Administration.”[1]

CRA’s claim appears to conflate two programs, which Congress authorized and funded separately: (1) water resource development projects overseen by the Army Corps of Engineers[2] and (2) watershed projects overseen by the Department of Agriculture.[3] In support of its claim, CRA cites Louis Fisher’s Presidential Spending Power. Fisher, in turn, cites several primary sources,[4] including President Johnson’s 1965 statement upon signing Public Law 89-298[5] and Representative G.V. Montgomery’s 1969 floor remarks asserting that Johnson impounded funds for small watershed projects governed by Public Law 83-566.[6] Because these programs are distinct, we assess them individually below. Although Johnson objected to a statutory requirement in Public Law 89-298 that the Public Works Committees approve water resource development projects before the Army could draw funds to prosecute them, it is not clear whether Johnson impounded funds in light of this objection. And it appears that Johnson did not impound funds under the “watershed protection” appropriation for small watershed projects, but rather prudently obligated those funds in accordance with the law.

Watershed project #1: Public Law 89-298

Funds for water resource development projects under Public Law 89-298

There is not enough information to determine whether funds were impounded as a result of Johnson’s objection to a committee approval requirement in Public Law 89-298. Title II of Public Law 89-298, known as the Flood Control Act of 1965, “authorized” the secretary of the army to construct and maintain certain “water resource development project[s].”[1] However, section 201(a) of the law provided that “[n]o appropriation shall be made to construct, operate, or maintain any [water resource development] project if such project has not been approved by resolutions adopted by the Committees on Public Works of the Senate and House of Representatives, respectively. For the purpose of securing consideration of such approval the Secretary shall transmit to Congress a report of such proposed project, including all relevant data and all costs.”[2] President Johnson objected to this procedure on the basis that it violated the Constitution’s separation of powers.[3] But he nevertheless signed the legislation into law because he concluded that the legislation “permits, but does not require, the executive branch to use the objectionable procedure.”[4] And he “instructed the Secretary of the Army to refrain from exercising the authority with which section 201(a) attempts to vest in him.”[5] The day after enacting the 1965 Flood Control Act (Public Law 89-298), Congress enacted a public works appropriations act (Public Law 89-299) providing the Army Corps of Engineers with about $993 million to construct “river and harbor, flood control, shore protection, and related projects.”[6] The appropriation provided that the funds would “remain available until expended,” but barred the Army from using them “for projects not authorized by law,” an evident cross-reference to the project-approval requirement in the Flood Control Act.[7] It is not clear if Johnson impounded funds made available under this appropriation as a result of his objection to section 201’s committee-approval requirement. Section 204 of the 1965 Flood Control Act “adopted and authorized” numerous other flood control projects that were not subject to a committee approval requirement, and directed that those projects “shall be initiated as expeditiously and prosecuted as vigorously as may be consistent with budgetary requirements.”[8] The administration later reported spending $934 million of its $993 million appropriation for fiscal year 1966.[9] Although this amounts to an underexpenditure of almost $60 million, because the relevant appropriation was “to remain available until expended,” the administration was not required to spend the full amount in a single fiscal year. Moreover, it is not clear whether Johnson’s objection to section 201(a), or other programmatic factors, caused the underexpenditure.

Watershed project #2: Public Law 83-566

Funds for watershed projects under Public Law 83-566

We found no evidence that Johnson impounded funds for small watershed projects under the relevant appropriation. CRA claims that “[i]n 1965, Johnson impounded funds for watershed projects in order to voice his opposition to the legislative procedures used to appropriate the funds.”[1] CRA cites Louis Fisher’s Presidential Spending Power in support of this claim.[2] Fisher, in turn, cites a 1969 floor speech by Rep. Montgomery, who asserted that Johnson withheld funding from “96 small watershed projects approved by both Houses of the 90th Congress” because Johnson objected to a committee approval procedure in the governing law, Public Law 83-566.[3] Although that law contained a committee approval procedure similar to the one in the 1965 Flood Control Act,[4] we found no evidence confirming that Johnson objected to the specific procedure in Public Law 83-566 or that he impounded funds on the basis of that objection.[5] Indeed, the Johnson administration’s reporting to Congress on its annual expenditures under the relevant appropriation[6] — the Department of Agriculture’s “watershed protection” appropriation — seems to show that the administration obligated the appropriated funds in full.[7] Moreover, the standard statutory language for that appropriation provided both that funds “shall remain available until expended” — meaning they did not have to be spent in full in a single fiscal year — and that the current-year appropriation “shall be merged” with “the unexpended balances of funds heretofore appropriated or transferred to the Department for watershed protection purposes.”[8] In other words, Congress anticipated that some of the funds made available for watershed projects might be left over at the end of the fiscal year, and it provided, in each annual appropriation, that those funds would be available for use in future fiscal years. Thus, even if the Johnson administration impounded some small amount of “watershed protection” funds from year to year, the underlying appropriation permitted that temporary impoundment and expressly allowed the use of such funds in the future. In light of this statutory language and the administration’s reporting on its “watershed protection” expenditures, it seems likely that the Johnson administration did not impound funds for the watershed projects Rep. Montgomery listed in his floor remarks, but rather that it prioritized other projects over the listed ones. Such action would have been consistent with the discretion that the administration was afforded in the underlying appropriation, which provided a lump sum for an array of different watershed protection efforts[9] but did not specify an order in which those efforts should be undertaken.

Nuclear-powered guided missile frigate

According to CRA, “Johnson also impounded funding for … a nuclear-powered guided missile ship,” the DLGN-36.[1]

This impoundment was authorized by statute. In a 1965 defense authorization act, Congress authorized an appropriation of $1.72 billion for naval vessels, but provided that “$150,500,000 is authorized only for the construction of a nuclear powered guided missile frigate.”[2] In the appropriations act that followed, Congress appropriated $1.6 billion for naval “Shipbuilding and Conversion,” which was “to remain available until expended.”[3] Committee reports accompanying the final bill show that Congress included within that amount $20 million for “advanced procurement of long lead time items required for the construction of a nuclear powered guided missile frigate.”[4] However, the appropriation made no specific mention of a nuclear-powered ship. The Defense Department, which opposed construction of the frigate, refused to release those funds to the Navy.[5] The following year, Congress passed legislation that pushed the executive branch to build the ship, but that contained an explicit loophole. The language authorizing funds for the ship stated that the administration “shall” enter into a contract to build the ship “as soon as practicable unless the President fully advises the Congress that its construction is not in the national interest.”[6] Members of the House Armed Services Committee had pushed for “strong mandatory language” (without such an exception) but were rebuffed by their Senate colleagues, who apparently did not want to deny the executive branch discretion over the building of the ship.[7] In the defense appropriations act that year, Congress appropriated over $1.75 billion for naval “Shipbuilding and Conversion,” which was “to remain available until expended.”[8] Although that appropriation again did not mention the nuclear-powered ship, committee reports show that Congress included $130.5 million within the “Shipbuilding and Conversion” appropriation for “construction of a nuclear powered guided missile frigate.”[9] Though the administration could have simply informed Congress that the building of the ship was not in the national interest, the secretary of defense instead released funding for the ship and permitted its construction.[10] Because the appropriations were to “remain available until expended,” this delay in the release of funds was authorized by statute.

Federal-aid highway funds

According to CRA, “President Johnson impounded billions of dollars in funds appropriated for federal highways.”[1] In support of this, CRA cites only a 1967 attorney general opinion considering the legality of a fiscal year 1967 deferral of nearly $700 million in federal highway funds.[2] This entry addresses that specific impoundment.

This impoundment was authorized by statute and involved no claim of any constitutional authority to impound. In 1966, Congress appropriated $3,898,400,000 for the federal highway trust fund, “to remain available until expended.”[3] However, in light of the president’s effort to reduce federal spending to curb inflation and in accordance with the Bureau of the Budget’s instructions, the federal highway administrator limited highway trust fund obligations to $3.3 billion for fiscal year 1967.[4] As Acting Attorney General Ramsey Clark explained in an opinion on the matter, the “effect of the action is to defer to fiscal years subsequent to fiscal 1967 the obligation of funds in excess of $3.3 billion for Federal-aid highway projects. The reduction of funds was limited to the approval of future projects and did not affect the availability of funds for projects which already had been approved and which, pursuant to 23 U.S.C. 106(a), constitute contractual obligations of the United States.”[5] After reviewing both the authorizing statutes governing the Federal-aid highway program and the fiscal year 1967 appropriation providing funds for it, Clark concluded that the secretary of transportation “has the power to defer the availability to the states of those funds authorized and apportioned for highway construction which have not, by the approval of a project, become the subject of a contractual obligation on the part of the Federal Government in favor of a State.”[6] (Although Clark’s opinion at times took a broad view of presidential power, a subsequent Department of Justice opinion on executive impoundment, written by then-Assistant Attorney General William Rehnquist, stated that Clark’s opinion “appears to us to have been based on the construction of the particular statute, rather than on the assertion of a broad constitutional principle of executive authority.”[7]) In a separate opinion on the legality of the highway deferral, the General Accounting Office reached the same conclusion as Clark. As Comptroller General Elmer Staats explained: “The General Accounting Office is responsible for seeing that appropriations made by the Congress are disbursed in accordance with the laws enacted by the Congress …. The permanent provisions of law governing the Federal-aid highway program are contained in title 23, United States Code. We find nothing in title 23 which specifically requires the Executive Branch to obligate in fiscal year 1967 all the Federal-aid highway funds available for obligation during that fiscal year, … nor are we aware of such a requirement in any other law.”[8] Moreover, in a Senate hearing, during a discussion of Johnson’s attempts to reduce spending in fiscal year 1967, Budget Bureau Director Charles Schultze clarified that, “[i]n the case of the highway trust fund, … this is a deferral; the funds remain available and will be used for completion of the highway system.”[9] In February and March of 1967, Johnson released $175 mill

Construction of a national aquarium

According to CRA, “[i]n 1966, Johnson impounded funds for the construction of a national aquarium.”[1]

This impoundment was authorized by statute. In 1962, Congress passed a law that “authorized,” but did not require, construction of the National Fisheries Center and Aquarium.[2] In 1965, Congress provided $9.2 million for that construction in an $11.2 million supplemental appropriation, which was “to remain available until expended,” for the Interior Department’s Bureau of Sport Fisheries and Wildlife.[3] The text of that appropriation stated only that the money was an additional amount for the bureau’s “Construction” account,[4] which made funds available for an array of purposes: “construction and acquisition of buildings and other facilities required in the conservation, management, investigation, protection, and utilization of sport fishery and wildlife resources.”[5] The supplemental appropriation itself did not mention the aquarium. Only committee reports specified that $9.2 million of that appropriation was intended “for construction of the National Fisheries Center and Aquarium.”[6] In a 1971 congressional hearing on impoundments, officials from the Department of the Interior testified that the $9.2 million Congress appropriated for the aquarium was placed in reserve from 1966 to 1971.[7] During the hearing, these officials explained that the funds were initially placed in reserve because the aquarium could not be built until the design and planning process concluded, which did not occur until approval of the final plans in February 1969 (Johnson’s presidency ended on January 20th, 1969).[8] Although by the start of the Nixon administration the plans had been completed and the building of the aquarium could have commenced, Department of the Interior officials were instructed not to move forward.[9] In 1971, the funds “remain[ed] in reserve” and the administration recommended that the project be terminated.[10] At that point, the question is whether the Nixon administration was required by statute to build the aquarium or spend a particular sum of funds on it. The answer appears to be “no.” In 1962, Congress “authorized,” but did not require or direct, construction of the aquarium.[11] Appropriations acts for the Department of the Interior for fiscal years 1966–71 similarly indicate no requirement to build the aquarium or to spend a particular amount on it.[12] And in 1972, Congress acceded to the administration’s request to terminate the project. In a conference committee report, lawmakers noted that they would use the unspent $9.2 million to fund other Bureau of Sport Fisheries and Wildlife construction projects.[13]

Agriculture appropriation

According to CRA, “in 1966, Johnson objected to an agricultural appropriation bill that exceeded his budget request and ‘proceeded to reduce expenditures for certain items ‘in an attempt to avert expending more in the coming year than provided in the budget.’”[1]

As detailed further in the entries that follow, all of the significant cuts or deferrals that the Johnson administration made to agricultural appropriations were authorized by statute, with the exception of one which appears not to be an impoundment at all. In 1966, due to concerns about inflation, Johnson decided that he needed to take steps to reduce government spending. In a special message to Congress, he estimated that about $3 billion in reductions would be needed “in that limited portion of the fiscal 1967 budget under direct Presidential control.”[2] One of the areas targeted for reductions by Johnson was agricultural appropriations. In his 1966 signing statement accompanying the Department of Agriculture and Related Agencies Appropriation Act, Johnson made clear that, despite that “Congress often adds to or reduces specific items proposed in the President's budget,” and though this is “a proper exercise of congressional prerogative,” he would nonetheless “reduce expenditures for the programs covered by this bill.”[3] Johnson thought that Congress’s addition of $312.5 million beyond his budget request was “most unwise” at a time when he was “making every effort to moderate inflationary pressures.”[4] In a press conference announcing his 1966 budget cuts, Johnson said that “[i]n the Department of Agriculture program reductions will be in excess of $400 million,” with a resulting “$350 million in expenditure reduction.”[5] In early 1967, his budget director, Charles Schultze, gave testimony to both the House Ways and Means Committee and the Senate Appropriations Committee detailing the cuts.[6] Schultze provided a table to Congress (Table 3) that lists 18 different expenditure reductions in Department of Agriculture spending, ranging from $0.4 to $100 million, and including deferrals.[7] Below is an analysis of each of the eight expenditure reductions of $10 million or more, which account for more than 90 percent of the total expenditure reductions.[8] Seven of these reductions were authorized impoundments and one was not an impoundment. In Johnson’s public statements, he sometimes made vague and broad declarations about his authority as president — but he also frequently attempted to reassure Congress and the public that he was exercising restraint, following the law, and acting with congressional approval. He noted, for example, that more than half of the non-defense budget was made up of “payments fixed by law or otherwise uncontrollable.”[9] Furthermore, he said that he had discussed his budget cuts “with 34 key Members of the House and Senate, including the leaders of both parties and members of the Appropriations Committees,” and that “[t]hey believe that reductions are prudent and necessary for our national well-being.”[10] Johnson also eventually released $71 million in Department of Agriculture funds, stating that “[i]nflationary pressures have subsided.”[11]

Agriculture reductions #1 and #2: Food-for-Freedom

(1) $100 million reduction, and (2) additional $25 million reduction (following preparation of 1968 budget estimates) in Public Law 480 food-for-freedom shipments[1]

This impoundment was authorized by statute. Public Law 480 is a reference to the Agricultural Trade Development and Assistance Act of 1954, which, as amended, “authorize[d]” the president “to determine requirements and furnish agricultural commodities” obtained from the Commodity Credit Corporation (CCC) “to meet famine or other urgent or extraordinary relief requirements” abroad, and for other purposes.[2] The statute gave the Johnson administration the discretion to determine when and under what circumstances to “request” agricultural commodities from the CCC for foreign assistance, and provided that the president “may furnish” such commodities “in such manner and upon such terms and conditions as he deems appropriate.”[3] For fiscal year 1967, in addition to $3.6 billion appropriated to cover CCC operating losses, including but not limited to losses due to administration of Public Law 480, Congress also appropriated $200 million, “to remain available until expended,” specifically for “commodities disposed of for emergency famine relief to friendly peoples” pursuant to Public Law 480, as amended.[4] Because Congress granted the president discretion in that law and made its 1966 appropriation of $200 million “available until expended,”[5] the Johnson administration had discretion to maintain expenditures for this program at levels below the appropriated amount.

Agriculture reduction #3: Sales of farm loans

$86 million reduction in expenditures due to action to speed up sale of loans from the Agricultural Credit Insurance Fund[1]

This was not an impoundment. This entry in Schultze’s Table 3 appears to refer to accelerated sales by the Farmers Home Administration (FmHA) of real-estate secured loans made by private lenders to small family farmers and ranchers and agricultural associations that the FmHA acquired in connection with its insurance (guarantees) of such loans, pursuant to authority conferred by the Consolidated Farmers Home Administration Act of 1961.[2] FmHA was “authorized” but not required by the statute to insure and purchase such loans, and could either hold such loans in the Agricultural Credit Insurance Fund (ACIF) or sell them.[3] Therefore the referenced action does not appear to involve a reduced expenditure of budget authority, but rather an adjustment to expected earnings from accelerated sales of loans in the ACIF portfolio.

Agriculture reduction #4: Farm operating loans

$75 million reduction in Farmers Home Administration farm operating loans[1]

This impoundment was authorized by statute. The Consolidated Farmers Home Administration Act of 1961, “authorized” but did not require the secretary of agriculture to make direct operating loans to family farmers and ranchers and soil conservation districts.[2] Furthermore, the relevant appropriations language provided that such loans “may be made from funds available,” in the amount of $350,000,000.[3] The Johnson administration therefore had discretion to maintain expenditures for this program at levels below appropriated amounts. (On March 17, 1967, Johnson announced that he had released $25 million in “[f]arm operating loans.”[4])

Agriculture reduction #5: Agricultural commodities

$40 million reduction in Section 32 purchases of agricultural commodities by the Consumer and Marketing Service[1]

This impoundment was authorized by statute. The Act of August 24, 1935,[2] known as Section 32, created a permanent appropriation (equal to 30 percent of annual customs duties receipts) for payments to encourage the exportation and domestic consumption of U.S. agricultural commodities, and to purchase surplus commodities to support farm income, such payments to be made “at such times, in such manner and in such amounts as the Secretary of Agriculture finds will effectuate substantial accomplishment of any one or more of the [statute’s] purposes.”[3] The statute, as amended, expressly provided that unobligated balances up to $300,000,000 would continue to remain available until expended.[4] Thus, the statute contemplated that the secretary may elect not to expend or obligate all appropriated funds in a given fiscal year, and provided that unspent amounts may be carried forward for use in future years. The Johnson administration therefore had discretion to maintain expenditures for this program at levels below appropriated amounts.

Agriculture reductions #6 & #7: Rural electrification

(1) $27 million reduction in expenditures and (2) further $10 million reduction in expenditures (following preparation of 1968 budget estimates), from “[h]old[ing] down” new Rural Electrification Administration loan commitments, and postponing advances on prior commitments[1]

This impoundment was authorized by statute. The Rural Electrification Act of 1936 “authorized and empowered,” but did not require, the Rural Electrification Administration to make loans for rural electrification and the provision of rural telephone service.[2] That law authorized appropriations for such loans, and provided that “[i]f any part of the annual sums made available for the purposes of this Act shall not be loaned or obligated during the fiscal year for which such sums are made available, such unexpended or unobligated sums shall be available for loans by the Administrator in the following year or years ….”[3] Moreover, for fiscal year 1967 the relevant appropriation stated that funds for such loans, exceeding $490 million, were to “remain available without fiscal year limitation.”[4] Therefore, the Johnson administration had statutory discretion to reduce or defer expenditures for rural electrification and telephone service loans (so long as consistent with prior commitments) even if additional appropriated funds for the programs remained available.

Agriculture reduction #8: Research construction

$10.9 million due to “slowdown on research construction” for the Agricultural Research Service and Library[1]

This impoundment was authorized by statute. The Department of Agriculture Organic Act of 1944 “authorized” but did not require the secretary of agriculture to “erect, alter, and repair such buildings and other public improvements as may be necessary to carry out [the department’s] authorized work.”[2] Pursuant to this authority, the relevant appropriation made funds available to the Agricultural Research Service (ARS) for the construction, alteration, and repair of buildings and improvements in connection with its agricultural research programs, animal and plant disease and pest control, and other activities.[3] The appropriation provided $123.4 million for ARS research programs generally, including but not limited to facilities construction and improvement, and stipulated that $11.2 million of that amount was to remain available for construction and improvement of agricultural research facilities until expended.[4] As these provisions and the Organic Act indicate, the administration had statutory discretion to spend less than the full amount set aside for ARS research construction.

Housing and Urban Development Funds

According to CRA, “Johnson also impounded funding for low-cost housing ….”[1]

As detailed further below, all of the significant cuts or deferrals that the Johnson administration made to housing and urban development funds were authorized by statute. In 1966, due to concerns about inflation, Johnson decided that he needed to take steps to reduce government spending. In a special message to Congress, he estimated that about $3 billion in reductions would be needed “in that limited portion of the fiscal 1967 budget under direct Presidential control.”[2] One of the areas targeted for reductions by Johnson was housing and urban development appropriations. In a press conference announcing his 1966 budget cuts, Johnson said that there would be “in the neighborhood of $1 billion” of reductions “in housing and urban development.”[3] In early 1967, his budget director, Charles Schultze, gave testimony to both the House Ways and Means Committee and the Senate Appropriations Committee detailing the reductions.[4] Schultze provided to Congress a table (Table 3) that lists five different expenditure reductions in housing and urban development spending, ranging from $2.0 to $280 million, and including deferrals.[5] Below is an analysis of the four expenditure reductions listed in Schultze’s Table 3, under Housing and Urban Development, of $10 million or more, accounting for over 99 percent of the total.[6] As noted above, all four of these reductions were authorized by statute. In Johnson’s public statements, he sometimes made vague and broad declarations about his authority as president — but he also frequently attempted to reassure Congress and the public that he was exercising restraint, following the law, and acting with congressional approval. He noted, for example, that more than half of the non-defense budget was made up of “payments fixed by law or otherwise uncontrollable.”[7] Furthermore, he said that he had discussed his budget cuts “with 34 key Members of the House and Senate, including the leaders of both parties and members of the Appropriations Committees,” and that “[t]hey believe that reductions are prudent and necessary for our national well-being.”[8] Johnson also eventually released the majority of the deferred funds for the Department of Housing and Urban Development — $630 million[9] — stating that “[i]nflationary pressures have subsided.”[10]

Housing and urban development reduction #1: Low-cost mortgages

$280 million in low-cost housing mortgages[1]

This impoundment was authorized by statute. At the time, the National Housing Act of 1934 “authorize[d]” but did not require the president — after considering “conditions in the building industry and the national economy,” and “conditions affecting the home mortgage investment market,” and finding it to be “in the public interest” — to “authorize” the Federal National Mortgage Association (FNMA) to purchase mortgages for low- and moderate-cost housing insured under 12 U.S.C. § 1715l(d)(3) and (h), subject to an aggregate $2.25 billion cap on mortgages held at any one time for this and other “special assistance functions” specified under 12 U.S.C. § 1720.[2] Mortgage purchases under this “special assistance” authority appear to have been funded through borrowing authority — that is, a kind of budget authority “enacted to permit an agency to borrow money and then to obligate against amounts borrowed.”[3] Specifically, it appears these mortgage purchases were funded through the issuance of FNMA stock, including preferred stock issued to the Department of the Treasury, and/or debt obligations FNMA was authorized, but not required, to issue to Treasury as needed to carry out its “special assistance functions” under 12 U.S.C. § 1720.[4] (HUD’s fiscal year 1967 appropriations included no funds for purchases of mortgages to carry out FNMA’s “special assistance” functions[5] or for purchases of other FNMA mortgages.) Nothing in the statute authorizing FNMA’s borrowing to fund mortgage purchases required it to obligate against the full amount borrowed. Because of this, and because FNMA was authorized but not required to purchase mortgages for low- and moderate-cost housing, the administration had discretion to reduce anticipated expenditures for this program.

Housing and urban development reduction #2: Secondary market mortgages

$176 million reduction in expenditures for “FNMA secondary market mortgage purchases”[1]

This impoundment was authorized by statute. At the time, under the National Housing Act, the FNMA was “authorized” to purchase, sell, and otherwise deal in any mortgages which are insured under the Act, without prior authorization by the president, for purposes, inter alia, of facilitating the secondary mortgage market, but not mandated to do so by the pertinent provisions.[2] Mortgage purchases for FNMA’s “[s]econdary market operations” under 12 U.S.C. § 1719 appear to have been funded through borrowing authority — that is, a kind of budget authority “enacted to permit an agency to borrow money and then to obligate against amounts borrowed.”[3] Specifically, it appears these mortgage purchases were funded through the issuance of stock, including preferred stock issued to the Department of the Treasury, and/or debt obligations that FNMA was authorized, but not required, to issue to Treasury.[4] (HUD’s fiscal year 1967 appropriations included no funds for purchases of mortgages to carry out FNMA’s secondary market operations,[5] or for purchases of other mortgages.) Nothing in the statute authorizing FNMA’s borrowing to fund mortgage purchases required it to obligate against the full amount borrowed. Because of this, and because FNMA was authorized but not required to purchase mortgages for secondary market operations, the administration had discretion to reduce anticipated expenditures for this program.

Housing and urban development reduction #3: Multifamily housing construction

$75 million reduction in expenditures for “FNMA construction financing of certain multifamily housing”[1]

This impoundment was authorized by statute. This action appears to fall within FNMA’s same discretionary National Housing Act authority (noted immediately above) regarding the purchase and sale of mortgages insured under the Act in connection with FNMA’s secondary market operations (the Act provided for federal insurance of certain multi-family housing mortgages).[2] (And, as also noted immediately above, such purchases appear to have been funded through borrowing authority — that is, FNMA issuances of stock and/or issuance of debt obligations to Treasury — rather than through appropriations.) Therefore the administration had discretion to reduce anticipated expenditures for this program.

Housing and urban development reduction #4: Urban renewal grants

$10 million reduction in urban renewal program grants and loan disbursements to local public agencies[1]

This impoundment was authorized by statute. The reference evidently is to urban renewal grants and loans made to local public agencies under Title I of the Housing Act of 1949[2] and section 314 of the Housing Act of 1954.[3] These statutes provided that the Housing and Home Finance Administration (later succeeded by the Department of Housing and Urban Development) was “authorized” to make and “may make,” but was not required to make, loans and grants to local public agencies and other public bodies to finance various urban renewal projects.[4] For fiscal year 1967, Congress appropriated $725 million to these grant programs “to remain available until expended.”[5] The Johnson administration therefore had discretion to maintain expenditures for these urban renewal programs at levels below the appropriated amounts (so long as consistent with prior grant and loan commitments).[6]

Department of Health, Education, and Welfare reductions

According to CRA, “Johnson also impounded funding for … the Department of Health, Education, and Welfare ….”[1]

As detailed further below, all of the significant cuts that the Johnson administration made to various student loan, regional medical, and construction grant programs at the Department of Health, Education, and Welfare (HEW) were authorized by statute. Moreover, all of them concern spending that was deferred rather than permanently withheld, and one reduction was not an impoundment at all. In short, none of these cuts reflects an effort to thwart Congress’s will. In 1966, due to concerns about inflation, Johnson decided that he needed to take steps to reduce government spending. In a special message to Congress, he estimated that about $3 billion in reductions would be needed “in that limited portion of the fiscal 1967 budget under direct Presidential control.”[2] One of the areas targeted for reductions by Johnson was HEW. In a press conference announcing his 1966 budget cuts, Johnson said that “[i]n the Department of Health, Education, and Welfare we will have … about $275 million in expenditure reductions. That will be in the delayed start of a good deal of construction and the transfer of certain allocations that are unspent in certain areas.”[3] In early 1967, his budget director, Charles Schultze, gave testimony to both the House Ways & Means Committee and the Senate Appropriations Committee detailing the reductions.[4] The table Schultze provided to Congress (Table 3) lists over 40 different HEW reductions, ranging from $0.1 to $61.7 million, largely deferrals rather than cuts.[5] As Schultze noted in his testimony, “with respect to deferrals, for example, in the case of the … HEW projects,” “the money will be spent later.”[6] Below is an analysis of each of the six reductions of $10 million or more (excluding the elementary and secondary education programs, discussed further below separately), which account for more than 70 percent of the total.[7] Five of these reductions were authorized by statute, and one was not an impoundment. In Johnson’s public statements, he sometimes made vague and broad declarations about his authority as president — but he also frequently attempted to reassure Congress and the public that he was exercising restraint, following the law, and acting with congressional approval. He noted, for example, that more than half of the non-defense budget was made up of “payments fixed by law or otherwise uncontrollable.”[8] Furthermore, he said that he had discussed his budget cuts “with 34 key Members of the House and Senate, including the leaders of both parties and members of the Appropriations Committees,” and that “[t]hey believe that reductions are prudent and necessary for our national well-being.”[9]

HEW reduction #1: Higher education loans

$30.8 million reduction: “Higher education loan[s],” due to program reduction of $100 million to be carried over for use in 1968[1]

This reduction was not an impoundment. The referenced action appears to concern the federal guaranteed student loan program, as authorized by the Higher Education Act of 1965.[2] At the time the statute provided that upon receipt and approval of an application from an eligible lender, the HEW commissioner of education “may issue … a certificate of insurance” to the lender covering a single insurable higher-education loan, or all such loans made by the lender within a specified period and subject to an aggregate maximum amount stated in the certificate,[3] subject also to a statutory cap on the aggregate principal amount of all loans covered (in fiscal year 1967, $1 billion).[4] The Act established a student loan insurance fund for payments to lenders in connection with defaults on insured loans.[5] It appears that, by temporarily reducing the aggregate principal amount of student loans to be insured “from “$300,000,000 to $200,000,000,”[6] the Johnson administration expected to induce lenders to make fewer loans during the fiscal year, thereby slowing inflation. Because the statute authorized but did not require the commissioner to insure all or even a minimum aggregate principal amount of eligible student loans, the described “program reduction” for fiscal year 1967, with carryover to fiscal year 1968, appears to have fallen within the administration’s discretion. In addition, the “program reduction” appears to have involved a policy change rather than a reduction in the expenditure of appropriated funds: lowering the aggregate principal amount of loans insured by the commissioner for the remainder of fiscal year 1967. Therefore, the action was both consistent with statute and did not appear to involve any impoundment.

HEW reduction #2: Construction grants

$61.7 million reduction due to deferral in grants for construction of “[a]cademic facilities,” “research construction,” and “research and training project[s].”[1]

This impoundment was authorized by statute. The referenced action appears to concern grants for the construction of undergraduate and graduate academic facilities authorized by Titles I and II of the Higher Education Facilities Act of 1963 (“HEFA”),[2] and grants for research, surveys, and demonstrations in the field of education authorized by the Act of July 26, 1954 (later known as the Cooperative Research Act).[3] Title I of HEFA directed the commissioner of education, upon receipt and approval of applications from eligible institutions of higher education, to award grants to such institutions from appropriations allocated among the states according to a prescribed formula, for the construction of undergraduate academic facilities meeting certain statutory requirements. The statute authorized the commissioner to pay grants in advance, by way of reimbursement, or in installments as he determined, and further provided that funds appropriated for the purpose of these grants would remain available until the close of the next succeeding fiscal year.[4] The Supplemental Appropriations Act, 1967, appropriated $453 million for Title I grants, to remain available through the close of fiscal year 1968.[5] Title II of HEFA directed the commissioner, upon receipt and approval of applications from eligible institutions of higher education, to award grants to such institutions for the construction of graduate academic facilities meeting certain statutory criteria, and provided that sums appropriated for this purpose were to remain available until expended.[6] The Supplemental Appropriations Act, 1967, appropriated $60 million for Title II grants to remain available until expended.[7] The Cooperative Research Act “authorized,” but did not require, the commissioner to make grants available to public or non-profit universities, colleges, or other public or non-profit agencies, institutions, or organizations, for research, surveys, and demonstrations, and the construction of regional research facilities, in the field of education. The Act further provided that appropriated funds allocated to construction projects for which applications were submitted before July 1, 1970, and approved by the commissioner before July 1, 1971, were to remain available until expended.[8] Congress made $70 million in fiscal year 1967 funding available for these purposes, up to $12.4 million of which was to remain available for the construction of regional research facilities until expended.[9] The administration therefore had discretion to defer awards of HEFA Title I and Title II grants, and to maintain expenditures for educational research under the Act of July 6, 1954, at levels below appropriated amounts. (And as Budget Director Schultze noted in his Senate testimony, “with respect to deferrals, for example, in the case of the … HEW projects,” “the money will be spent later.”)[10]

HEW reduction #3: Deferral of new projects

$13.2 million reduction in expenditures due to deferral of new projects in federally impacted areas.[1]

This impoundment was authorized by statute. Public Law 81-815[2] authorized payments to assist local school districts (at varying rates of subsidy) in the construction of additional school facilities needed to accommodate enrollments of children (i) residing on federal property, (ii) residing on federal property with a parent employed on federal property, (iii) residing with a parent employed on federal property, or (iv) whose attendance otherwise ensuing from federal activities substantially increased enrollment.[3] In the event a local school district was unable to provide for the education of such children, the statute directed the commissioner of education to make arrangements for constructing or otherwise providing necessary school facilities for their education.[4] The act provided that sums appropriated for these purposes were to “remain available until expended.”[5] An Office of Legal Counsel (OLC) opinion from 1969 briefly considered precisely the question at issue here: whether it was legal for the president to defer expenditures of funds appropriated to carry out Public Law 81-815.[6] The opinion stated that “it does appear to us that there are enough discretionary powers throughout the statute to permit [the commissioner of education] to postpone the obligation of funds.”[7] It went on to say that the language in the fiscal year 1970 appropriation saying that the funds “shall remain available until expended … would seem to confirm the conclusion that there is no legal requirement that the funds be obligated in the year for which the appropriation is made.”[8] Since that language — to “remain available until expended” — was also used in both Public Law 81-815 itself, as noted above, and the corresponding appropriation for school construction in federally affected areas for fiscal year 1967,[9] and because that appropriation further provided that “applications filed on or before June 30, 1966, shall receive priority over applications filed after such date,”[10] it seems clear that the Johnson administration had the authority to defer expenditures on the “new projects” referenced in Schultze’s testimony.[11] (And as Schultze stated, “with respect to deferrals, for example, in the case of the … HEW projects,” “the money will be spent later.”)[12]

HEW reduction #4: Public health service expenditures

$55.9 million reduction in Public Health Service expenditures due to deferred hospital construction starts[1]

This impoundment was authorized by statute. The expenditures at issue involved grants and loans for hospital and other facilities construction. Many if not most of these expenditures were likely mandated by statute (upon receipt and approval of applications from eligible state or local agencies or non-governmental institutions).[2] However, the relevant appropriation also made clear that substantial sums — exceeding the $55.9 million at issue here — were available until the close of fiscal year 1968, and in two cases “until expended.”[3] Therefore, the Johnson administration’s deferral of these funds was likely authorized by statute. And as Budget Director Schultze noted in his Senate testimony, “with respect to deferrals, for example, in the case of the … HEW projects,” “the money will be spent later.”[4]

HEW reduction #5: Regional medical program

$10 million reduction in expenditures due to slow down in planning and operating the regional medical program[1]

This impoundment was authorized by statute. Public Law 89-239[2] “authorized,” but did not require, the surgeon general to make grants to public or nonprofit private universities, medical schools, and research institutions to assist them in the development, construction, and operation of regional programs for cooperative research, training, diagnosis, and treatment relating to heart disease, cancer, or stroke, and related illnesses.[3] Moreover, the relevant appropriation of $43 million specified that the funds did not have to be spent until the end of fiscal year 1968.[4] The administration therefore had discretion, under the authorizing statute and appropriation, to “slow down” the expenditures at issue. And as Budget Director Schultze noted in his Senate testimony, “with respect to deferrals, for example, in the case of the … HEW projects,” “the money will be spent later.”[5]

HEW reduction #6: Community mental health centers

$15.2 million reduction in expenditures due to deferred construction of community mental health centers[1]

This impoundment was authorized by statute because the spending was deferred and not withheld. Title II of the Mental Retardation Facilities and Community Mental Health Centers Construction Act of 1963 established mandatory formula grants to states for the construction of community mental health centers.[2] However, the relevant appropriation of $50 million specified that the funds did not have to be spent until the end of fiscal year 1968 (the deferral here occurred in fiscal year 1967).[3] The administration therefore had discretion to defer the expenditures at issue. And as Budget Director Schultze noted in his Senate testimony, “with respect to deferrals, for example, in the case of the … HEW projects,” “the money will be spent later.”[4]

Elementary and Secondary Education Act programs

According to CRA, “Johnson also impounded funding for … elementary and secondary education.”[1]

In 1966, due to concerns about inflation, Johnson decided that he needed to take steps to reduce government spending. In a special message to Congress, he estimated that about $3 billion in reductions would be needed “in that limited portion of the fiscal 1967 budget under direct Presidential control.”[2] One of the areas Johnson targeted for reductions was elementary and secondary education. In a press conference, Johnson announced that there would be “$530 million in program reductions” amounting to “$395 million in expenditur[e]” reductions for “[e]lementary and secondary education.”[3] In early 1967, his budget director, Charles Schultze, gave testimony to both the House Ways and Means Committee and the Senate Appropriations Committee detailing the reductions.[4] The vast majority of them ($410 million in expenditures) were listed in a table (Table 2) entitled “[i]ncreased congressional authorizations for which we do not plan to request 1967 appropriations.”[5] Because that table reflects only a decision not to request appropriations, and not the deferral or unilateral cutting of enacted appropriations, this “reduction” was not an impoundment. However, Schultze’s Table 3 lists two actual reductions within the HEW appropriation, under the heading “Elementary and secondary education activities,” each of which exceeds $10 million.[6] As discussed below, both reductions appear to be deferrals rather than permanent cuts. And Johnson announced in March 1967 that the majority of those deferred funds had been released prior to the end of the fiscal year.[7]

ESEA reduction #1: Educational centers

$18.2 million reduction in expenditures for supplementary educational centers and services due to deferral of new project grants[1]

This impoundment was likely authorized by statute. Title III of the Elementary and Secondary Education Act of 1965 (ESEA) provided for grants to local educational agencies (subject to the submission and approval of applications meeting program requirements) to fund “supplementary education centers and services” out of appropriated sums apportioned among the states according to a prescribed formula.[2] The commissioner of education was given discretion to make grant payments for approved projects in advance, in installments, or by way of reimbursement.[3] The Supplemental Appropriations Act, 1967, allocated $145,000,000 for these grants.[4] Because this “cutback” involved only a deferral of new project grants and, as noted above, Schultze testified that where expenditures at HEW were deferred “the money [would] be spent later” in the year while the funds “remain available,”[5] the administration likely acted within the scope of its discretion under the statute.

ESEA reduction #2: Education grant funds

$34 million reduction in expenditures due to postponing reallocation of grant funds for education of disadvantaged children[1]

This impoundment was likely authorized by statute. Title I of ESEA provided for grants to eligible state and local educational agencies (upon the submission and approval of applications complying with program requirements) to meet the educational needs of children from low-income families (or otherwise disadvantaged), to be funded out of appropriated sums apportioned among the states according to a prescribed formula.[2] The Supplemental Appropriations Act, 1967, allocated approximately $1.1 billion for these grants.[3] To partially offset shortfalls in appropriated funds, the statute provided that the excess of a state’s total grant eligibility over the amount for which applications in the state had been approved was to be made available to local agencies, first in that state, and then in others, experiencing a shortfall. The statute did not specify, however, when or how quickly the commissioner of education must execute this reallocation of excess available funds.[4] Thus, the halt in “reallocation of [Title I] formula grants” appears to have been a reference to a pause in an ongoing reallotment of grant funds from states that had been allocated funds in excess of their needs. Because this “cutback” involved only a deferral in making funds available;[5] because, as noted above, Schultze testified that where expenditures at HEW were deferred, “the money [would] be spent later” in the year while the funds “remain available”; and because the statute did not prescribe at what point in the fiscal year the reallocation of funds must occur, the administration likely acted within the scope of its statutory discretion.