Congress' Power: Refusing To Fund Laws

The Constitution grants Congress the power of the purse, meaning that it can approve federal spending in the budget. This power is not absolute, however, and there is debate over the extent to which Congress may use funding limitations to control the President's exercise of discretion in carrying out their duty to execute the law. While Congress can refuse to fund a law, it is obligated to provide funding for the President to undertake executive powers. Furthermore, the President can delay spending funds for up to 45 days when Congress is in session while awaiting a response to a request to cancel an expenditure.

The Impoundment Control Act of 1974

The ICA was enacted by Congress in response to President Nixon's refusal to spend funds on numerous programs approved by Congress. The most notable example of this was when Nixon refused to spend $50,000 that Congress had appropriated to build 15 gunboats on the Mississippi. Nixon's supporters believed that he was managing funds in an inflationary environment using his Take Care powers. However, critics argued that he was using his impoundment powers to effectively veto programs by cutting off their funds.

The ICA requires the President to report promptly to Congress when he or she impounds funds as a deferment (a temporary delay) or a recission (a permanent cancellation) of spending. This notification is called a "special message" and must contain information such as the reason for the impoundment, along with the estimated fiscal, economic, and budgetary effects. Spending deferrals must not extend beyond the current fiscal year, and Congress can override deferrals using an expedited process.

The ICA has been amended over time, and today, it allows deferrals only "to provide for contingencies," "to achieve savings made possible by or through changes in requirements or greater efficiency of operations," or "as specifically provided by law." The Act also specifies that the President may not withhold Social Security and Medicare funding.

The Line Item Veto Act of 1996

The conditions for this cancellation included the president determining that such an act would reduce the federal budget deficit and would not impair essential government functions or harm the national interest. The president was also required to notify Congress of any cancellation within five calendar days after the enactment of the law providing such amount, item, or benefit. Furthermore, the act directed the president to transmit a special message to Congress, identifying the amounts, items, and benefits cancelled, along with the reasons for the cancellation and its estimated fiscal, economic, and budgetary effects.

The Take Care Clause

• Powers directly granted to the president by the Constitution's Article II: This includes the authority to receive ambassadors, act as Commander-in-Chief, negotiate treaties, and grant pardons.
• Powers bestowed upon the president by congressional acts: These are powers that Congress has explicitly given to the president through legislation.
• Powers granted to heads of departments and other executive agencies: Congress may also confer powers on leaders of various government departments and agencies, who then report to the president.
• Implicit power to enforce criminal statutes: This refers to the president's responsibility to uphold and enforce criminal laws within the United States.
• Power to carry out ministerial duties: Ministerial duties refer to tasks where an executive officer has a degree of discretion in terms of how and when they are performed.

While the Take Care Clause establishes the president's duty to execute the law, it does not specify how the president should do so. This has led to debates about the extent of presidential authority in managing funds. For example, President Nixon's supporters argued that he was using his Take Care powers to manage funds in an inflationary environment, while critics accused him of using impoundment to veto programs by cutting off their funds.

To address these conflicts, Congress passed the Congressional Budget and Impoundment Control Act of 1974, which includes the Impoundment Control Act (ICA). The ICA limits the president's ability to decline or delay spending funds appropriated by Congress. It requires the president to report to Congress when funds are impounded, and any spending deferrals must not extend beyond the current fiscal year. Additionally, Congress can override deferrals using an expedited process.

In summary, the Take Care Clause outlines the president's responsibility to enforce the law and execute the powers granted by Congress and the Constitution. It is an essential component of the system of checks and balances between the legislative and executive branches of the US government.

The Anti-Deficiency Act

The ADA prohibits federal agencies and employees from:

• Obligating or expending federal funds in advance or in excess of an appropriation
• Creating or authorising an obligation or expenditure from an appropriation or fund in excess of the amount available
• Involving the government in any obligation to pay money before funds have been appropriated, unless otherwise allowed by law
• Accepting voluntary services for the United States, except in emergencies involving the safety of human life or the protection of property
• Making obligations or expenditures in excess of an apportionment or the amount permitted by agency regulations

The Act also requires that appropriated funds be "apportioned" and "allocated" before they can be expended by the Executive Branch. This means that funding must be spread out over the fiscal year to avoid shortfalls. If spending is postponed, a "deferral" must be made under the Impoundment Control Act (ICA), and Congress must be informed.

Violations of the ADA can result in administrative and penal sanctions for federal employees, including suspension from duty without pay, removal from office, fines, and imprisonment. Agencies that violate the ADA must report to the President and Congress, providing a statement of actions taken. While no one has been convicted or indicted for violating the ADA, punitive administrative actions are routinely taken against employees, and agreements have been changed due to violations.

The Necessary and Proper Clause

The interpretation of the Necessary and Proper Clause has been a subject of debate, with the Supreme Court playing a pivotal role in shaping its understanding. In the landmark case of McCulloch v. Maryland (1819), the Supreme Court interpreted the clause as granting Congress implied powers in addition to its enumerated powers. The Court unanimously held that Congress had the implied authority to establish a national bank, as it was a suitable instrument to facilitate the enumerated power to tax and spend. This decision set a precedent for interpreting the Necessary and Proper Clause as an extension of Congress's powers.

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