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45 U. Colo. L. Rev. 25 (1973-1974)
The Presidency and the Purse: Impoundment 1803-1973

handle is hein.journals/ucollr45 and id is 49 raw text is: THE PRESIDENCY AND THE PURSE: IMPOUNDMENT 1803-1973 NILE STANTON* I. INTRODUCTION Justice Holmes once observed that great ordinances of the Con- stitution do not establish and divide fields of black and white and that however we may disguise it by veiling words we do not and cannot carry out the distinction between legislative and executive action with mathematical precision and divide the branches into watertight compartments . . . .' This caveat on the separation of powers seems particularly applicable to the controversy concerning presidential impoundment2 of appropriated funds. While the question as to whether the President has the power to impound funds may be a political one,' the corollary question, whether he has statutory or constitutional authority to do so, is answerable when the historical record4 and recent developments are fully considered. It would be a Procrustean task to identify with mathematical precision the extent to which principles of the separation of powers might sanction or disallow presidential impoundment of appropriated funds. Nevertheless, it is now clear that, as a general rule, the Presi- dent has only a very restricted statutory authority and even less-con- stitutional authority to refuse to spend funds. That there exists a certain ill-defined penumbra of authority in the President to exercise * Executive Director, Indianapolis Lawyers Commission. The views expressed herein are the author's and should not be construed to be those of the Lawyers Commission. 1. Springer v. Phillipine Islands, 277 U.S. 189, 209, 211 (1928) (dissenting opinion). 2. The term impoundment is used in a generic sense. It can refer to delaying, freezing, reserving, sequestering, or withholding appropriated funds or deferring the allocation of funds. Hearings on Executive Impoundment of Appropriated Funds Before the Subcomm. on Separa- tion of Powers of the Senate Comm, on the Judiciary, 92d Cong., 1st Sess. 1 (1971) (testimony of Senator Ervin) [hereinafter cited as 1971 Hearings]; Fisher, Funds Impounded by the Presi- dent: The Constitutional Issue, 38 GEO. WASH. L. REV. 124 (1969) (In its broadest context, impoundment occurs whenever the President spends less than Congress appropriates for a given period.). 3. Seee.g., Fisher, supra note 2, at 136; Miller, Presidential Power to Impound Appro- priated Funds: An Exercise in Constitutional Decision-Making, 43 N.C.L. REV. 502, 533 (1965). Cf Frankfurter, Chief Justices I Have Known, 39 VA. L. REV. 883, 895 (1953): [B]y the very nature of our Constitution, practically every political question eventu- ally, with us, turns into a judicial question. 4. As one scholar has suggested, [Historical materials] are of crucial significance to any conceivable process of judi- cial review, and in one fashion or another, and to one end or another, they have been consulted throughout the recorded experience of the Supreme Court. A. BICKEL, THE LEAST DANGEROUS BRANCH 98 (1962).