THE POWER OF THE PRESIDENT TO IMPOUND
APPROPRIATED FUNDS: WITH SPECIAL
REFERENCE TO GRANTS-IN-AID TO
SEGREGATED ACTIVITIES
Robert E. Goostree*
DEBATE in the first session of the present Congress has raised the question of the power of the President or other executive officers to withhold
funds appropriated for Federal grants-in-aid to impacted school areas,
when the impacted areas operate segregated schools.' The debate centered about a proposed amendment to the school aid bill which would have
forbidden specifically the impounding of grant-in-aid funds to segregated
school districts The amendment was defeated, perhaps upon the assurance of Secretary Abraham A. Ribicoff of the Department of Health,
Education, and Welfare that neither he as Secretary nor the Commissioner of Education possessed power to withhold funds for this reason.'
The question of the constitutional power (or duty) of the President to
order impounding by the Bureau of the Budget of funds for segregated
school districts arose only in passing, in the form of a research report
favoring such power prepared by the American Law Division of the
Legislative Reference Service, and inserted into the CongressionalRecord
during the debate.4 This report was clearly drawn at the request of a
proponent of the power and presented only arguments supporting the
power.
The issue is, of course, an aspect of the broader constitutional question
of the President's power under any circumstances to withhold funds appropriated for governmental functions authorized by law. No such question exists where the appropriation act or the authorizing statute specifically delegates discretion to the President or another executive officer in
regard to expenditure: the very grant of discretion confers power to spend
or not to spend. Where no such delegation of discretion exists, however,
* A.B., Southwestern; MA., Ph.D., State University of Iowa. Professor, School of Government and Public Administration, American University.
1. Senate consideration of S. 1021, providing Federal aid for public schools, began May
16, 1961.
2. 107 Cong. Rec. 7522 (daily ed. May 16, 1961). The proposed amendment provided,
in part, that "no department, agency, officer .. .of the United States shall withhold funds
appropriated under authorization of this title
from any State or School otherwise eligible
because of any law, policy or practice of the State or school with regard to segregation
or desegregation of the races in the schools."
3. Id. at 7807 (daily ed. May 18, 1961).
4. Id. at 7522-24 (daily ed. May 16, 1961).
POWER OF THE PRESIDENT
is this power to be found either in the Constitution or in general statutory
enactments about executive budgetary control? The broad issue as to
whether an appropriation is a mandate to spend or merely permission to
spend is not clarified by the Constitution and has been the subject of
judicial scrutiny only in limited aspects. Apart from legislation regarding
executive control of the budget, a claim that an appropriation is merely
permissive or that the President may impound appropriated funds for
reasons of his own would seem to rest upon the Constitutional requirement that the President "take care that the laws are faithfully executed"'
or upon an inherent executive power. It would seem that both possible
bases for this claimed Presidential power have been eliminated by Supreme Court decisions,' although no case is fully dispositive of the question.
On the other hand, strong arguments can be made upon the basis of
other Supreme Court decisions 7 for the existence of a general power to
withhold funds, either totally or in part, as a result of other aspects of
the Executive power. Finally, regardless of the existence of the power
to impound as a general proposition, it may well be that specific Constitutional prohibitions on activity by the National Government may necessarily imply a Presidential power to impound funds the spending of which
would in effect amount to a violation of the prohibition. This aspect of
the problem in its baldest form is: When Congress has authorized and
appropriated funds to be spent in aid of segregated schools, does a national constitutional policy supporting desegregation require and permit
the President to impound such funds? It would seem that any power
to impound either must rest upon statutory authority, or upon authority
to be derived from the "execution of the laws" clause, or must be an inherent Executive power. No serious contention can be made that the
President's power as commander-in-chief could confer upon him the power
to impound funds for non-military purposes. The unexercised treaty
power, similarly, can have no relation to this matter. No exercise of the
power of the President to issue reprieves and pardons is involved, nor is
there a question of the exercise of the President's appointment power.
Examination of the facets of Presidential power in the area involves,
then, consideration of existing statutory authority to impound funds, of
the possible authority to be derived from the "execution of the laws"
5. U.S. Const. art. II, § 3.
6. Principally, Kendall v. United States ex rel. Stokes, 12 Pet. (37 U.S.) 524 (1838) and
Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579; 26 A.L.R.2d 1378 (1952).
7. Principally, In re Neagle, 135 U.S. 1 (1890) and United States v. Midwest Oil Co., 236
U.S. 459 (1915).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. II
clause of the Constitution, of the potential authority to impound as an
inherent Presidential power, and of authority to impound as a derivative
of Constitutional prohibitions, especially of the equal protection and due
process clauses and their relation to expenditures for purposes of segregation.
I.
STATUTORY AUTHORITY FOR PRESIDENTIAL IMPOUNDING
The control which the President exercises over the budget for the Executive Branch is statutory in origin, having been established by the Budget
and Accounting Act of 1921. 8 This Act provided for Presidential control
over requests for funds for activities of the Executive Branch, but made
no provision for such Presidential control over the expenditure of appropriated funds, regardless of whether such funds were requested or were
in excess of Presidential requests. For twenty years, the only formal
Presidential response to appropriations "not in accord with the President's program" was by veto, if any control was to be had over the
amounts appropriated.
Even before the Budget and Accounting Act, however, the AntiDeficiency Acts of 1905 and 1906 had established the requirement of
agency apportionment of total appropriations into quarterly amounts,
providing that no more than one-quarter of the total appropriation might
be expended in any quarter of the fiscal year. This device was later used
to effect savings when the required purpose was accomplished within the
appropriation made for that purpose.
The first impounding of appropriated funds occurred in 1941, when
President Roosevelt ordered the impounding of funds appropriated for
public works not thought to be of an essential defense nature.' 0 Congressional protest was unavailing. Since that time, Presidents have utilized
the impounding technique from time to time to reduce the level of expenditures for an authorized program, invariably accompanied by Congressional protest. The most important of such incidents occurred in 1949
when President Truman ordered the withholding of $615,000,000 which
had been appropriated in excess of his request for a forty-eight group
Air Force." With this controversy historically recent, impounding to
8. Budget and Accounting Act, 42 Stat. 20 (1921), 31 U.S.C. §§ 1, 2, 11, 13-24, 41-44,
46-50, 52-57.
9. Anti-Deficiency Act, 33 Stat. 1257 (1905). Also see Williams, The Impounding of
Funds by the Bureau of the Budget 6.
10. Williams, op. cit., supra at 8-20.
11. Id. at 30. Most recently, President Kennedy on October 28, 1961, ordered the impounding of some $780,000,000, appropriated in excess of his budget request for B-52 and
B-70 bombers. Congressional protest from Senator John Stennis, Chairman of the Military
1962]
POWER OF THE PRESIDENT
prevent deficiencies and to effect economies in governmental operations
was authorized by the General Appropriations Act of 1951."2 This provision that "[R] eserves may be established to provide for contingencies,
or to effect savings whenever savings are possible by or through changes
in requirements, greater efficiency of operations, or other developments
subsequent to the date on which such appropriation was made available"' 3
remains in force in 1961. The House Appropriations Committee specified
that the bill was designed "to hold administrative officials responsible for
the administration of an activity for which an appropriation has been
made" by assuring that they "should bear final responsibility for rendering all necessary service with the smallest amount possible within the
ceiling figure fixed by the Congress." 4 The purpose of the reserve section,
according to the Committee, is "to require careful apportionment of all
types of funds expended by Federal agencies and efficient administration
of the Government's business.",
The outer limits of statutory authority of the President or Executive
officers are described by these provisions for apportionment and reserves.
It would seem clear that in the eyes of Congress an appropriation is more
than a mere authorization to spend. Rather, when taken together with
the statutory authorization of a program for which the appropriation is
made, it is a mandate to perform the service for which the appropriation
is made, with due regard to efficiency and economy.
Impounding for reasons other than economy and efficiency has no statutory sanction as a part of the general process of budget execution. Instances in which it has occurred, either as regards an entire appropriation
or in terms of the reduction of the level of expenditure for a program,
have been met with Congressional protest. That impounding between
1941 and 1961 has not been subjected to judicial scrutiny is undoubtedly
the result of lack of standing to sue on the part of agencies to which funds
were denied.'
The grant-in-aid to states or localities for purposes previously authorized by law does not differ in kind from the appropriation which is spent
directly by an agency of the national government. The present system
of monetary grants is largely a twentieth-century development, but grants
Preparedness Subcommittee of the Senate Armed Services Committee, was immediate.
Washington Star, October 28, 1961, p. 1.
12. General Appropriation Act, 64 Stat. 595 (1951), § 1211; 31 U.S.C. § 665 (c).
13. 31 U.S.C. § 665 (c) (2).
14. H. R. Rep. No. 1797, 81st Cong., 2d Sess. 9 (1951).
15. Ibid.
16. Supra notes 10 and 11.
(Italics supplied).
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[Vol. I1I
of land to the States for public purposes are contemporaneous with the
Constitution itself. The Congressional authority to grant land rests upon
the power to dispose of territory or other property of the United States. 17
Authority for grants of money to the States is derived from the power
of Congress to pay the debts and provide for the common defense and
general welfare.'" Challenges of the constitutionality of grants-in-aid
were rebuffed at the outset by denial in Massachusetts v. Mellon and
Frothinghamv. Mellon to states and to individuals of standing to sue for
this purpose.'" This doctrine has been applied to uphold the legality of
a federal grant for the purpose of constructing a municipal power plant
to operate in competition with the plaintiff.2 0 The only exception to the
Mellon rule-has been permitted on the theory that a grant-in-aid statute
creates a legal right to receive granted funds and that consequently a
state has standing to sue to obtain such funds.'
The power of Congress to impose conditions upon grants-in-aid was
inferentially upheld in Steward Machine Co. v. Davis2 2 and was specifically approved in Oklahoma v. Civil Service Commission. 8 The requirement of the Hatch Act for abstinence from partisan political activity by
persons administering federal highway grants was held to be a condition
to continued receipt of the grant. "While the United States is not concerned with, and has no power to regulate, local political activities as
such of state officials, it does have power to fix the terms upon which its
24
money allotments to states shall be disbursed.
Under the holding of the Oklahoma case, it would seem that a state or
locality claiming to have complied with conditions for the receipts of
grants-in-aid would have standing to sue in the Federal courts for vindication, of a legal right. "Congress may create legally enforceable rights
where none before existed. Payments were not made at the unfettered
discretion of a federal disbursing officer or . . . agency, but according
to statutory standards, compliance with which entitled Oklahoma to receive her proper share of the Federal appropriations. ' 2 Executive action
17. U.S. Const. art. IV, § 3, par. 2.
18. U.S. Const. art. I, § 8, cl. 1.
19. Massachusetts v. Mellon, Frothingham v. Mellon, 262 U.S. 447 (1923). Many instances of impounding of appropriated funds for governmental operations other than for
grants-in-aid could not be litigated because of lack of standing to sue on the part of a
governmental agency. More remote potential beneficiaries would lack standing under
Massachusetts v. Mellon.
20. Alabama Power Co. v. Ickes, 302 U.S. 464 (1938).
21. Oklahoma v. United States Civil Service Commission, 330 U.S. 127 (1947).
22.
23.
24.
25.
301 U.S. 548 (1937).
Oklahoma v. United States Civil Service Commission, supra note 21.
Id. at 143.
Id. at 136.
POWER OF THE PRESIDENT
to withhold grant-in-aid funds is subject to adjudication as to the existence
of authority to withhold other than (1) for purposes of economy and
efficiency, (2) in the exercise of delegated discretion, or (3) in the enforcement of a Congressionally-imposed condition precedent to receipt
of the grant.
II.
THE POWER TO EXECUTE THE LAWS AND AUTHORITY TO IMPOUND
The President is empowered and required to take care that the laws
are faithfully executed. 6 Whether this Constitutional provision conferred
powers beyond the enumerated powers of the President, and whether it
vested in him discretion as to the execution of Acts of Congress was argued
in Kendall v. United States ex rel. Stokes.Y7 Postmaster General Amos
Kendall disallowed claims of Stokes for carrying the mails. Congress
passed an act directing Kendall to credit claimant with the amount due,
as determined by the Solicitor of the Treasury. Kendall again refused to
pay the claim, contending that only the President, under the power to see
that the laws are executed, could require that he pay the claims. The Supreme Court upheld a mandamus by the Circuit Court of the District of
Columbia, ordering the payment, holding that the President was not empowered to dispense with the operation of law upon a subordinate executive officer. "The executive power is vested in a president; and as far
as his powers are derived from the constitution, he is beyond the reach
of any other department, except in the mode prescribed by the constitution through the impeaching power. But it by no means follows, that
every officer in every branch is under the exclusive direction of the President." Where Congress imposes "upon any executive officer any duty they
may think proper, which is not repugnant to any rights secured and protected by the constitution . . . in such cases, the duty and responsibility
grow out of and are subject to the control of the law, and not to the direction of the President."28
The Court scouted the idea that the effect of the responsibility to see
that the laws are faithfully executed is to create discretion in the President
as to their execution. "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.12 9 The President cannot dispense with the execution of the
laws, under the duty to see that they are executed. To hold otherwise
26.
27.
28.
29.
U.S. Const. art. II, § 3.
12 Pet. (37 U.S.) 524 (1838).
Id. at 610.
Id. at 613.
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[Vol. I I
would be to vest completely the legislative power in the President or to
confer upon him a veto power over laws duly passed and enrolled. To accord discretion to a President as to what laws should be enforced and how
much would enable him to interpose a veto retroactively, perhaps even
upon legislation in full force and effect for decades. That each successive
incumbent of the Presidency is not to have a veto power retroactive to
the earliest laws is attested by the words of the Constitution itself. The
manner of exercising the veto is narrowly circumscribed.80 Upon Presidential signature, or upon repassage by two thirds of each House of
Congress, the bill "shall become a law." 3' It is these laws that the successive Presidents are required to see faithfully executed. No means are
envisioned in the Constitution for a President to make objection upon his
opinion of the constitutionality of existing law other than by urging its
repeal on that ground.
The same is true if it be argued that the Constitution itself is one of
the "laws" to be faithfully executed. It cannot be denied that the President may veto proposed laws upon the ground of unconstitutionality. The
dispensing power which would exist under a claimed power to impound
appropriations would, however, place the question of constitutionality
in the hands of each successive President with the result of unimaginable
instability and uncertainty as to the force of any law. The force of any
law would thereby be at the whim of the current incumbent of the Presidency. Surely this result cannot have been contemplated by the Framers.
Viewing the "faithful execution" clause as vesting in the President the
power to accomplish the duty, the Constitution provides that Congress
may prescribe the way in which this power is carried out. Congress "shall
have power to make all laws which shall be necessary and proper for
carrying into execution the foregoing powers, and all other powers vested
by this constitution, in the government of the United States, or in any
' Congress accordingly prescribes the way
department or officer thereof."3
in which the President sees that laws are executed embodying in their
context the determination that they are to be executed according to their
terms. "The executive cannot see that the laws be executed but in the
due forms of law.""8 This limiting view of the relation of the "necessary
and proper" clause to the powers granted by Articles II and III received
the express approval of the United States Supreme Court as to Article III
30.
31.
32.
33.
D.C.
U.S. Const. art. I, § 7.
U.S. Const. art. I, § 7, par. 2.
U.S. Const. art. I, § 8, cl. 18. (Italics supplied).
United States ex rel. Stokes v. Kendall, 26 Fed. Cas. 702, 748. (No. 15,917)
1837).
(C.C.
1962]
POWER OF THE PRESIDENT
in Ableman v. Booth.3 It follows that the President may not exercise
legislative powers as a means of carrying out his own powers. This does
not, of course, refer to legislative powers which are a part of his express
powers, especially the veto power, the manner of using which is constitutionally determined. To sanction withholding of appropriations upon
the basis of the Presidential authority to see that the laws are faithfully
executed would be to sanction the exercise of legislative power by the
President as a means of carrying out an executive power, thereby permitting him to make the Constitution self-executing as to his powers. This
the "necessary and proper" clause necessarily precludes.
Correlatively, if the President has no dispensing power, he likewise
has no power to instruct a subordinate officer to dispense with the execution of a statute. This principle was established in the earliest days of the
nation, when a written instruction of the President, directing a naval officer to seize vessels trading with French ports was declared invalid as
being in conflict with statute.3 5 That the President cannot authorize acts
forbidden by law was held specifically two years later by justice Paterson
on circuit, in the trial of one who alleged that the President had authorized
him to gather troops with the purpose of a military expedition against a
nation with which the United States was not at war. "The president of the
United States cannot control the statute, nor dispense with its execution,
and still less can he authorize a person to do what the law forbids. If he
could, it would render the execution of the laws dependent on his will and
pleasure.""8 As recently as 1956, Executive Order No. 10450 7 was
found to extend beyond the provisions of law and hence not to authorize
the discharge of incumbents in non-sensitive agencies. The discharging
of such an incumbent from the Department of Health, Education, and
Welfare by the Secretary was found not authorized, and in violation of
38
the Veterans Preference Act.
In short, the high Constitutional duty to see that the laws are faithfully
executed does not confer upon the President the discretion to determine
what laws shall be executed and how much. Whereas it may be a practical
impossibility that all the laws be executed with equal vigor all the time,
the Constitution seems to require no less. It is fallacious to argue that
what appears a practical impossibility gives legal justification to acts in
defiance of a plain duty.
34.
35.
36.
37.
38.
21 How. (62 U.S.) 506, 521 (1858).
Little v. Barreme, 2 Cr. (6 U.S.) 170 (1804).
United States v. Smith, 27 Fed. Cas. 1192, 1230.
18 Fed. Reg. 2489.
Cole v. Young, 351 U.S. 536 (1956).
(No. 16,342)
(C.C.D.N.Y. 1806).
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[Vol. I I
The Constitution may create the paradox that the President is required
to enforce laws that he believes to be unconstitutional. It is not, however,
permissible to resolve this paradox by Presidential defiance of law.
III. INHERENT EXECUTIVE POWER AND AUTHORITY TO IMPOUND
Theodore Roosevelt, making perhaps the most general claim of Presidential power ever made for a Chief Executive, insisted upon "the theory
that the executive power was limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by Congress under its
constitutional powers."" The Roosevelt theory was repudiated by the
United States Supreme Court as contrary to the Tenth Amendment,
viewing its words of reservation of powers not delegated as precluding
inherent executive power. 4° Before Roosevelt's enunciation of the "stewardship" theory, the Court had pointed out that "We have no officers
in this government, from the President down to the most subordinate
agent, who does not hold office under the law, with prescribed duties and
limited authority."'"
The most recent and perhaps the most significant decision upon the
nature and scope of Presidential power was that of Youngstown Sheet and
Tube Co. v. Sawyer.' This landmark case grew out of President Truman's seizure of strike-bound steel mills in 1952. On April 8 of that year
the President issued Executive Order 10340,11 authorizing and directing
Secretary of Commerce Charles Sawyer to take possession of and operate
certain steel mills. The President rested this action on "the authority
vested in me by the Constitution and laws of the United States, and as
President of the United States and Commander in Chief of the armed
forces of the United States. ' 44 The holding in the Youngstown case is
seemingly conclusive upon the question of inherent powers. Although
there was no majority opinion of the Court, two groups of three Justices
each arriving at the same result by different reasoning, there was no disagreement among the six as to the lack of inherent Presidential powers.
The consensus was that the investiture of the executive power in the
President combined with the "faithful execution" gave him no authority
of a legislative nature. The Executive Order was an unconstitutional
violation of the basic principle of separation of powers. The opinion of
39.
40.
41.
42.
43.
44.
Roosevelt, An Autobiography 389 (1913).
Kansas v. Colorado, 206 U.S. 46, 89-90 (1907).
The Floyd Acceptances, 7 Wall. (74 U.S.) 666, 676 (1868).
343 U.S. 579 (1952).
17 Fed. Reg. 3139.
Ibid.
1962)
POWER OF THE PRESIDENT
Justice Jackson formulated what has been widely accepted as the correct
statement of the applicable constitutional principle: "When the President
takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his
own constitutional powers minus any constitutional powers of Congress
over the matter. Courts can sustain exclusive presidential control in such
a case only by disabling the Congress from acting upon the subject.""
Congress' power to spend for the national defense and general welfare is
plenary, and includes the imposition of conditions for the receipt of
grants.4" Since the power of Congress to act in the area exists, the possibility of "exclusive Presidential control" is eliminated. Put another way,
if Congress has power to make unconditional grants and power to make
conditions at its discretion, there is no room for Presidentially added conditions. In short, where Congress has a power, there can be no inherent
Presidential power.4 7
Against the holding of the Youngstown case must nevertheless be
weighed two earlier Supreme Court decisions which seem to bespeak a
Presidential power of different dimensions. These are In re Neagle48 and
United States v. Midwest Oil Co.49 The former case arose out of the
assignment of a United States marshal, Neagle, to protect Justice Stephen
J. Field while on circuit in California, in the course of which assignment
Neagle shot and killed a man who was attacking the Justice. Expressing
the view that the Executive power was not limited to "the enforcement of
acts of Congress or of treaties of the United States according to their express terms," 50 the Court found that it was within "the power of the
President to take measures for the protection of a judge of one of the
courts of the United States... while in the discharge of the duties of his
office." 51 This broad language of the Court is thrown into confusion,
however, by a later reference to Neagle's act as having been a duty "imposed on him by the section of the Revised Statutes which we have recited, in connection with the powers conferred by the State of California
upon its peace officers, which become, by this statute, in proper cases,
45. Youngstown Sheet and Tube Co. v. Sawyer, supra, 637-38.
46. Oklahoma v. United States Civil Service Commission, supra note 21.
47. The converse of this proposition and the basic argument of the proponents of executive impounding to prevent segregation is considered in IV, infra. Concisely, this argument
is that lack of Congressional power to provide for segregation by appropriation creates
presidential power to prevent the use of appropriations for segregation.
48. in re Neagle, 135 U.S. 1 (1890).
49. 236 U.S. 459 (1915).
50. In re Neagle, supra note 48, at 64.
51. Id. at 67.
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[Vol. I I
transferred as duties to the marshals of the United States." 5 2 The Neagle
opinion is at most inconclusive as to whether an inherent Presidential
power or the statute is the source of the marshal's power. A convincing
argument could be made that the case in actuality was decided upon the
basis of the statute, in which event the dicta of the decision are no authority for the existence of an inherent Presidential power.
The Midwest Oil case"3 involved the question as to the power of the
President to transfer lands from the public domain to the naval oil reserve,
thereby removing them from eligibility for homestead or lease. No
statutory authority was given the President to accomplish such transfers.
Nevertheless, the Supreme Court upheld the President in his action. The
Court held that, although the President could not by his own course of
action create a power, Congress might ratify his actions by acquiescence
in them. Explicitly, the President is acting as an agent of the Congress."
Likewise, no private interest was injured because there was no private
right denied, there having been conferred merely a privilege to occupy
public lands. 5 An entirely different and easily distinguishable situation
existed than in the Oklahoma case,5" in which a legal right had been
created by compliance with the conditions for receipt of grant-in-aid
funds. It would seem that the Midwest Oil case is no authority for the
existence of inherent Presidential powers which might include the impounding power. Congress has by no means acquiesced in a course of
conduct in regard to impounding funds as it had done in regard to the land
transfers. Similarly, in grant-in-aid cases legal rights rather than privileges are involved.
It would seem, therefore, that the overwhelming weight of authority is
against the existence of any inherent Presidential power to impound
appropriated funds.
IV.
GRANT-IN-AID STATUTES AND "NATIONAL POLICY"
AS SOURCES OF AUTHORITY TO IMPOUND
If, as has been suggested, existing statutes regarding the execution
of the budget confer no general authority to impound grant-in-aid funds;
52. Id. at 69. The statute referred to is Rev. Stat. § 788, 28 U.S.C. § 549, which provides that "A United States marshal and his deputies, in executing the laws of the United
States within a state, may exercise the same powers which a sheriff of such a state may
exercise in executing the laws thereof."
53. Supra note 49.
54. Id. at 491.
55. Id. at 471. It is possible that today the Midwest Oil Company would not have
standing to sue, for this reason.
56. Supra note 21.
1962]
POWER OF THE PRESIDENT
if the "execution of the laws" clause of Article II confers no such power;
and if there is no inherent power over expenditures in the President, any
power to impound grants in aid of desegregation must be found either in
the statutes which themselves authorize the grants or in a "national
policy" of desegregation.
A detailed analysis of the multifarious grant-in-aid statutes involved is
precluded by space considerations. The major grant-in-aid programs in
the administration or results of which racial segregation or discrimination
exist have been considered by the United States Commission on Civil
Rights.17 These include grants for library services, 8 for hospital construction, 9 for aid to60 and construction of 1 schools in local areas where
Federal establishments have caused a substantial impact on school systems, for public airports, 62 for vocational rehabilitation, 3 for urban renewal 4 and for public housing. 5 In none of the statutes authorizing
grants is there a clear and unequivocal grant of authority to the President
or to a subordinate executive officer to withhold appropriated funds upon
a finding of racial segregation or discrimination in their administration
by states or localities. The closest approach to such authority is found
in the Library Services Act and in the Vocational Rehabilitation Act, both
of which authorize the responsible administrator to withhold funds upon
a finding of failure to comply with the conditions of the acts.66 The
former is to provide public library services, defined as serving "free all
residents of a community, district or region," 67 and the latter is to provide for "rehabilitating physically handicapped individuals."6 8 It is a fair
inference that the responsible administrator could withhold funds under
these programs if "all residents" were not served by participating libraries
or if rehabilitation of "physically handicapped" were based on racial con57. 1961 Commission on Civil Rights Report; pt. IV, "Education" at 144-48; pt. V,
"Employment" at 81-93, 111-26; pt. VI, "Housing" at 81-118. Hereinafter cited as 1961
Report.
58. Library Services Act, 70 Stat. 293 (1956), as amended, 20 U.S.C. §§ 351-58.
59. Hospital Survey and Construction Act (Hill-Burton Act), 60 Stat. 1040 (1946), 42
U.S.C. §§ 291, 291a-291m. The Land Grant College Act, 26 Stat. 417, 7 U.S.C. §§ 321-26,
328-29 carries a similar provision at § 323.
60. 64 Stat. 1100 (1950), 20 U.S.C. §§ 236-44.
61. 64 Stat. 967 (1950), 20 U.S.C. §§ 631-45.
62. Federal Airport Act, 60 Stat. 170 (1946), 49 U.S.C. §§ 1101-19.
63. Vocational Rehabilitation Act, 41 Stat. 735 (1920), amended to 68 Stat. 652, 29
U.S.C. § 3.
64. Housing Act, 63 Stat. 413 (1949), 42 U.S.C. § 1441; Housing Act, 68 Stat. 623
(1954), 42 U.S.C. § 1451.
65. United States Housing Act, 50 Stat. 888 (1937), 4Z U.S.C. § 1401.
66. 20 U.S.C. § 356; 29 U.S.C. § 35 (c).
67. 20 U.S.C. § 358 (c).
68. 29 U.S.C. § 31.
THE AMERICAN UNIVERSITY LAW REVIEW
(Vol.II
siderations. This interpretation is found by the Civil Rights Commission
to be followed by administration regulation in respect to vocational rehabilitation.6
A second group of grant-in-aid statutes, of which the Federal Airport
Act is illustrative, are silent upon the subject. It would seem that silence
permits administrative discretion as to imposition of non-discriminatory
use of Federal funds as a condition precedent to their receipt. The Civil
Rights Commission reports that this technique has been successfully followed in the administration of the Airport Act.7 0 The Midwest Oil Co.
holding, deriving executive authority from Congressional acquiescence in
a course of executive conduct, 7 clearly supports the validity of the application of administrative pre-conditions to the receipt of grant funds, in
the event that Congress does not correct such administrative interpretations.
A third group of statutes presents Congress' determination that the
appropriated funds shall be spent regardless of segregation in the facilities
provided. The Hill-Burton Hospital Construction Act provides that a
State plan for hospital construction shall not be approved unless assurance
is given that hospitals will be made available to all residents without discrimination on account of race, creed or color, except "in cases where
separate hospital facilities are provided for separate population groups,
if the plan makes equitable provision on the basis of need for facilities
and service of like quality for each such group." 2 The statutes providing
grants for direct aid and for school construction in federally impacted
areas require that "no department, agency, officer or employee of the
United States shall exercise any direction, supervision, or control over
the personnel, curriculum, or program of instruction of any school or
school system of any local or State educational agency."7 3 Detailed formulae are provided under these acts, and admit of little, if any, administrative discretion in arriving at the amounts payable. No power is provided to withhold funds for failure to comply with the conditions of the
acts, comparable to provisions in the Library Services Act and the Vocational Rehabilitation Act.74 It is clear that the Congressional intent did
not embrace authorization to impound funds upon the basis that they
might be spent in support of segregation.
69.
70.
71.
72.
73.
74.
1961 Report, pt. V, "Employment" at 111, citing 45 C.F.R. § 401.14 (a) (2) (1960).
Id., pt. V, "Employment" at 85, citing 14 C.F.R. § 550.24 (i) (2) and (5).
In re Neagle and United States v. Midwest Oil Co., supra note 7.
42 U.S.C. § 291 (f).
20 U.S.C. §§ 242 (a) and 642 (a).
See note 66, supra.
1962]
POWER OF THE PRESIDENT
Finding no statutory authority to withhold funds in this third group
of statutes necessitates consideration of the impact of the school desegregation decisions7 5 upon them, since the acts in question were passed
before these decisions. In the context existing since these decisions, two
questions are posed: do the decisions in Bolling v. Sharpe and Cooper v.
Aaron establish a national policy which empowers the executive to ignore
statutory language; if not, may the statutes themselves be subjected to
a construction different than their plain meaning by reason of these decisions?
Bolling v. Sharpe decided the unconstitutionality of segregation based
on race in the District of Columbia, upon the basis of the due process
clause of the Fifth Amendment. The Court's language tends to include
the Fourteenth Amendment guaranty of equal protection of the law as an
aspect of that due process of law which is protected against denial by the
National Government.76 Proponents of a Presidential power to withhold
grant-in-aid funds from segregated schools argue that the Fifth Amendment as interpreted in the Bolling case requires such Presidential action.
Cooper v. Aaron, the Little Rock School case, is adduced in support of
this view. Speaking of the contention that the Governor of Arkansas was
not bound by the decision in Brown v. Board of Education, the Court
said: "State support of segregated schools through any arrangement,
management, funds, or property cannot be squared with the [Fourteenth]
Amendment's command that no State shall deny to any person within its
jurisdiction the equal protection of the laws. 77 It follows, it is argued,
that the expenditure of Federal funds for the support of segregated schools
is unconstitutional under the Fifth Amendment. Granting the validity of
this proposition, however, it does not follow that the power to withhold
funds provided by law which may be used for this purpose is thereby conferred upon the President. It would seem, in the light of considerations
regarding the scope of his legislative power raised earlier, that Presidential action is constitutionally limited to vetoing the entire appropriation
which would be put to constitutionally proscribed uses in some states.
To hold otherwise would be to argue that the President may act unconstitutionally to uphold a constitutional principle, the absurdity of which
is manifest. The constitutional situation is aptly summarized by Senator
75. Bolling v. Sharpe, 347 U.S. 497 (1954) and Cooper v. Aaron, 358 U.S. 1 (1958). Brown
v. Board of Education, 347 U.S. 483 (1954) is not considered, since it dealt with limitations
upon the states under the equal protection clause of the Fourteenth Amendment, while the
present issue involves limitations upon the National Government.
76. Bolling v. Sharpe, supra at 499.
77. Cooper v. Aaron, supra at 19.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. I I
Kenneth B. Keating: "This is a classic example of constitutional wrong
for which no constitutional remedy exists, other than what we [the Congress] may provide by express enactment.
'78
Accordingly, it would seem that the Hill-Burton Act must await Congressional action to bring it into compliance with the constitutional mandate, since judicial review is precluded by existing doctrine as to lack of
individual standing to sue. Resort to impounding based on a claim of a
constitutional power to impound may, however, be unnecessary in order
to deal with the problem of expenditures for segregated schools under
the impacted areas legislation. An acceptable argument can be made that
Congress never intended by the "non-intervention" clauses of the education acts to preclude administrative discretion as to the disbursal of funds
for segregated schools. It will be recalled that the "non-intervention"
clauses provide that "no department, agency, officer or employee of the
United States shall exercise any direction, supervision, or control over
the personnel, curriculum, or program of instruction of any school or
school system of local or State educational agency."7 9 The ambiguity of
the phrase "personnel, curriculum, or program of instruction" is obvious,
and this phrase is susceptible of construction so as to eliminate what has
been administratively interpreted as a prohibition of denial of funds to
segregated schools. That the "non-intervention" clause has been incorrectly construed by the responsible administrators is demonstrated by the
fact that the National Defense Education Act, containing the same phraseology, 0 was passed in 1958 after the school segregation decisions. If Congress did not intend the "non-intervention" clause to have an unconstitutional meaning in 1958, which may be assumed, it presumably would have
changed the phrasing of the clause if the words were to carry a different
intent than when used before the desegregation decisions. It follows that
segregation was never intended to be embraced within the language "personnel, curiculum, or program of instruction." Administrative interpretation to this effect, and application of the education acts accordingly, would
be subject to judicial review. Such a procedure would not, as would impounding by Executive Order, place the courts in the position of upholding
an unconstitutional act in order to determine the unconstitutionality of
Federal grants-in-aid for segregated schools.
78. 107 Consg. Rec. 7808 (daily ed. May. 18, 1961).
79. See note 73, supra.
80. National Defense Education Act, 72 Stat. 1582 (1958)p 20 U.S.C. §§ 401, 402.
POWER OF THE PRESIDENT
1962]
V. CONCLUSIONS
The President has no general statutory authority to impound appropriated funds for reasons other than economy and efficiency of operation,
the power to impound for which is a specific statutory grant of power.
Nor can the President validly claim such authority as derived from the
duty "to take care that the laws are faithfully executed." Still less can
power to impound be attributed to inherent powers of the office. Bolling
v. Sharpe and Cooper v. Aaron, in holding that the National Government
might not segregate or support segregation under the Fifth Amendment,
did not thereby confer upon the President power to impound portions of
appropriations to prevent their use for the unconstitutional purpose. Certain grant-in-aid statutes permit sufficient administrative discretion to provide for the withholding of Federal funds for purposes involving racial
segregation, and the impacted area acts are susceptible of construction to
permit such discretion, although it would seem that the Hill-Burton Act
is not. That Congress has not acted to correct unconstitutional legislation
and that doctrines of standing to sue make it difficult to obtain court
action, however, lend no support to the argument that an executive power
to correct the law, specifically by the impounding device, need exist. The
dangers of the impounding device, giving the President the power to dispense with the execution of the law and giving him a retroactive veto
based upon his present opinion of the constitutionality of any statute, are
so great as to require resort to alternative methods of bringing grant-in-aid
statutes into conformity with the Constitution as respects segregation.
An alternative method of procedure worthy of consideration has been
recommended by the Civil Rights Commission: treat grants-in-aid as contracts and impose a non-discrimination condition precedent to the receipt
of funds as is presently the case with government contracts.8 ' This proposal has the great merit that it does not strike at the separation of powers
of government, which is basic to our constitutional system. The establishment of a Presidential power to impound funds goes too far upon this
road. "The temptation of many men of good will is to cut corners, take
short cuts, and reach the desired end regardless of the means. Worthy
as .
.
. the ends are ...
the particular means [proposed is] unconstitu-
tional. 8 2
81. 1961 Report, pt. V, "Employment" at 162, recommendation 3. The question as to
Presidential authority to accomplish this recommendation is not, however, satisfactorily
solved by the Commission report.
82. Douglas, J., dissenting in Hannah v. Larche, 363 U.S. 420, 494 (1960).