Article II, Section 3:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

The Take Care Clause has figured in debates between the political branches over the Executive Branch practice of impounding appropriated funds. No definition for this term exists in statute or in Supreme Court case law. One possible definition, though, describes Executive Branch action or inaction that results in a delay or refusal to spend appropriated funds, whether or not a statute authorizes the withholding.

It is difficult to state with certainty how frequently the Executive Branch has used impoundment. In perhaps the earliest example, President Thomas Jefferson delayed spending funds appropriated in 1803 for the purchase of gun boats, a response to international tensions concerning the port of New Orleans.1 After Congress made the funds available, the President negotiated the Louisiana Purchase, rendering the immediate use of the gun-boat appropriation “unnecessary.” 2 Presidents in the nineteenth3 and twentieth centuries4 similarly signaled a willingness to delay or withhold spending appropriated funds.

Impoundments usually proceeded on the view that an appropriation sets a ceiling on spending for a particular purpose but typically did not mandate that all such sums be spent.5 According to this view, if that purpose could be accomplished by spending less than the appropriation’s total amount, there would be no impediment in law to realizing savings.6 Impoundments were also justified on the ground that a statute, other than the appropriation itself, authorized the withholding.7

Executive impoundment reached its apex under President Richard Nixon, who employed impoundment more frequently than his predecessors.8 Often, his Administration justified impoundments by stating that different funding levels,9 or different funding models,10 were preferable to the ones that Congress had selected when it appropriated the funds.

The Nixon impoundments were scrutinized in congressional hearings.11 Members of Congress likened the impoundments to an unconstitutional assertion of a line-item veto.12 By withholding funding for a program, these Members argued, the President could modify or terminate the program without having to veto formally the entire act that made the withheld funds available.13 Administration officials, on the other hand, located the President’s authority to impound funds in, among other places, the Take Care Clause.14 These officials argued that the President’s duty to ensure faithful execution of the laws was not confined to mechanically spending the funds provided in a particular appropriation. Instead, the President had to “consider all the laws” that bore on fiscal policy (e.g., statutes allegedly bearing on inflation) and accommodate the “purposes” of these other laws when deciding whether to spend all, or only some, of the funds appropriated for a particular program.15

The constitutional dimensions of impoundment disputes have been confined to the political branches. The Supreme Court has not directly considered the extent of the President’s constitutional authority, if any, to impound funds.16 However, a case decided in 1838, United States v. Kendall,17 has been cited as standing for the proposition that the President may not direct the withholding of certain appropriations that, by their terms, mandate spending.18

In that case, the Court considered a statute directing one official (the Solicitor of the Treasury) to determine amounts the government owed to a mail contractor.19 A second official (the Postmaster General) was then required to credit the contractor’s account according to the Solicitor’s findings.20 The Postmaster General refused to make the full credit.21 When the contractor then asked the federal courts to order that the full credit be made, the Postmaster General responded that only the President could control his execution of the law.22 The Court rejected that argument. The President’s duty to see that the laws be faithfully executed did not include the power to forbid the execution of a law requiring a precise, definite action, such as updating Post Office accounts to reflect the Solicitor’s credit findings.23

Footnotes

1

See Sally K. & William D. Reeves, Two Hundred Years of Maritime New Orleans: An Overview, 35 Tul. Mar. L.J. 183, 186 (2010) (describing the Spanish intendant’s refusal to allow American use of the port of New Orleans before its acquisition by the United States).

2

10 The Works of Thomas Jefferson in Twelve Volumes 41 (Paul L. Ford ed., 1905) (Third Annual Message to Congress). The next year, President Jefferson reported that the appropriation was slated for use. See Id. at 115 (Fourth Annual Message to Congress) (stating that the 1803 appropriation “is now in a course of execution to the extent there provided for” ).

3

See, e.g., Ulysses S. Grant, Special Message to the House of Representatives (Aug. 14, 1876), reprinted in 7 A Compilation of the Messages and Papers of the Presidents: 1789–1897, at 377 (James D. Richardson, ed., 1898) (asserting that though he approved of an act providing appropriations for river and harbor projects, no funds would be spent on projects that served “purely private or local interest” as opposed to national interests).

4

See, e.g., H.R. Doc. No. 89–492, at 4 (1966) (message from President Lyndon B. Johnson stating that, as a means of controlling inflation, his Administration would withhold sums appropriated above the levels set forth in the administration’s budget request); Budget of the United States Government For The Fiscal Year Ending June 30, 1943, at IX (1942) (relaying President Franklin D. Roosevelt’s plan to restrict expenditures for certain civilian construction projects so as to focus on the war effort).

5

See H.R. Exec. Doc. No. 44–23, at 2 (1876) (report of Secretary of War James Cameron arguing that spending “the full amount” of an appropriation “was in no way mandatory” ).

6

Presidential Authority to Direct Departments and Agencies to Withhold Expenditures from Appropriations Made, 1 Op. O.L.C. Supp. 12, 16 (1937). In 1950, Congress authorized the use of reserves to realize savings. See General Appropriations Act of 1951, ch. 896, § 1211, Pub. L. No. 81-759, 64 Stat. 595, 765–66 (1950).

7

Executive Impoundment of Appropriated Funds: Hearings Before the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 92nd Cong. 96 (1971) [hereinafter 1971 Impoundment Hearings] (statement of C. Weinberger, Deputy Director, Off. of Mgmt. & Budget, Exec. Off. of the President) (asserting that to stay within the statutory debt limit President Eisenhower directed that fiscal year (FY) 1958 spending not exceed FY1957 levels).

8

Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers 64 (2017) (noting estimates of $18 billion in Nixon-era withholdings and scholarly opinion that the extent of these impoundments constituted “a difference in kind, not simply in degree,” from prior impoundments).

9

Withholding of Funds for Housing and Urban Development Programs, Fiscal Year 1971: Hearing before the Subcomm. on Hous. and Urban Affs. of the S. Comm. on Banking, Hous., and Urban Affs., 92nd Cong. 163, 165 (1971) (statement of George Romney, Sec’y of Transp.) (explaining that the administration did not “intend to accelerate” grant programs it had “scheduled for termination” and that therefore “extra” funds provided by Congress for one fiscal year would not be spent until the next).

10

Letter to Rep. Clement J. Zablocki, U.S. House of Representatives, from Caspar W. Weinberger, Deputy Director, Office of Management and Budget (Mar. 9, 1971), reprinted in 1971 Impoundment Hearings, supra note 7, at 310 (urging that sums the administration was withholding from infrastructure categorical grant programs be repurposed for a revenue sharing program).

11

This congressional interest eventually resulted in the Congressional Budget and Impoundment Control Act of 1974, which establishes the statutory framework that today governs the delay or withholding of budget authority. See Pub. L. No. 93-344, Title X, 88 Stat. 297, 332 (1974).

12

For a discussion of line-item vetoes, see ArtI.S7.C2.3 Line Item Veto.

13

See, e.g., Impoundment of Appropriated Funds by the President, Joint Hearings Before the Ad Hoc Subcomm. on Impoundments of Funds of the S. Comm. on Gov’t Ops. and the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 93d Cong. 59 (1973) (statement of Sen. Hubert H. Humphrey).

14

Officials also argued that, acting under his foreign affairs or Commander in Chief powers, the President could withhold spending in these areas. See Id. at 271 (statement of Roy L. Ash, Director-Designate, Off. of Mgmt. & Budget, Exec. Off. of the President).

15

See id. at 372, 381 (testimony of Joseph T. Sneed, Deputy Att’y Gen. of the United States).

16

The Supreme Court resolved one impoundment-related dispute on statutory grounds. See Train v. City of New York, 420 U.S. 35, 43–44 (1975).

17

37 U.S. 524 (1838).

18

See, e.g., The President’s Veto Power, 12 Op. O.L.C. 128, 167 (1988) (noting that the Supreme Court has not recognized “an inherent power to impound” and that Kendall “can be read to support the proposition that the executive’s duty faithfully to execute the laws requires it to spend funds at the direction of Congress” ). Kendall did not involve foreign affairs or defense duties, where additional considerations might apply for determining the President’s authority to engage in impoundment.

19

Act of July. 2, 1836, ch. 284, 6 Stat. 665.

20

Id.

21

Kendall, 37 U.S. at 611.

22

Id. at 612–13.

23

Id.