when Congress moved from line-item appropriations to lump-sum appropriations.

The reprogramming procedure provides a compromise between the needs of administrative flexibility in budget execution and congressional control over appropriations. Budget justifications are prepared months and sometimes years ahead of agency obligations. Reprogramming might be warranted for a number of reasons, including "unforeseen developments, changing requirements, incorrect price estimates, wage-rate adjustments, and legislation enacted after appropriations." But unlike many other aspects of budget execution, most controls over reprogramming are nonstatutory, "to be discovered in committee reports, committee hearings, agency directives, correspondence between subcommittee chairmen and agency officials, and also 'gentlemen's agreements' and understandings that are not part of the public record." 109

Transfers

Transfers involve the shifting of funds between appropriation accounts, in contrast to reprogramming which occurs within the same account. Statutory approval is required for transfers. Current law follows the principle dating back to 1868, by stipulating that appropriations "shall be applied only to the objects for which the appropriations were made except as otherwise provided by law." 110 But exceptions occur, "sometimes supported by statute, sometimes not." 111 Especially during times of national emergency, Congress has delegated transfer authority, such as in the Lend Lease Act of 1941.

For both transfers and reprogrammings, some funded program or activity must obviously have its resources reduced in order to augment programs favored by the administration. Reprogrammings are normally confined to the project or program level. On the other hand, the abuse of transfer authority may involve initiating a longterm financial commitment without congressional approval or establishing a program previously rejected by Congress. 112 And with transfers requiring statutory approval while reprogramming is generally subject only to nonstatutory controls, it is not surprising that reprogramming has greater potential as an alternative to the item veto.

Impoundment

Historically, "impoundment" has constituted something of an omnibus term, encompassing a variety of actions. According to one source, "It can refer to reserving, withholding, delaying, freezing or sequestering appropriated funds or deferring the allocation of funds." 113

The creation of reserves as a part of the apportionment process described above represents an impoundment of a routine administrative nature. This practice, previously authorized by Budget

109 Fisher, Presidential Spending Power, at 76.

110 31 U.S.C. 1301(a).

111 Fisher, Presidential Spending Power, at 104-05.

112 Id. at 107 ff. for example of Cambodian Intervention.

113 Nile Stanton, "History and Practice of Executive Impoundment of Appropriated Funds," 53 Neb. L. Rev. at 207 (1974).

Bureau regulation, received a statutory base through an amendment to the Antideficiency Act in 1950. The amendment authorized the President to establish budgetary reserves in conjunction with the apportionment of any appropriation to provide for contingencies, or to affect savings whenever savings are made 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. Î14

Virtually all Presidents have impounded funds in a routine manner as an exercise of executive discretion to accomplish efficiency in management. However, so-called "policy impoundments," where a President might seek to terminate or curtail a program because he opposes it, have been less frequent. Extensive use of policy impoundments during the Nixon Administration led to the establishment of new statutory controls in Title X of the Budget and Impoundment Control Act of 1974. This law tightened the language of the 1950 amendment to the Antideficiency Act by deleting the "other developments" rationale for creating reserves in an effort to curtail policy impoundments under that authority.115 The 1974 law further divided impoundments into two categories and established different procedures for congressional review and control of the respective types. A "rescission" involves permanent cancellation of the funds in question, while a "deferral" entails a short-term postponement. 116

The Comptroller General is required to oversee executive compliance with the Impoundment Control Act and report to Congress if the President fails to report an impoundment or improperly classifies an action. The definition of impoundment in the 1974 law, broadly interpreted, could cover thousands of routine administrative actions each year which affect the rate and level of expenditure, and the distinction between deferrals and rescissions allows for some ambiguity. In practice, a narrower view has been adopted by the Comptroller General, however. He has ruled that spending less than the full amount of an appropriation alone does not constitute an impoundment. "There must be sufficient evidence of behavior on the part of responsible Executive agency officials that demonstrates an intention to refrain from obligating available budget authority, 117

The 1974 law requires the President to inform Congress of all proposed rescissions and deferrals. In the case of proposed rescissions, the funds must be released within 45 days of continuous session unless both Houses of Congress pass a bill approving the rescission. Deferrals remain effective unless one House disapproves. The 1983 Supreme Court decision in the Chadha case, which held the legislative veto to be unconstitutional, invalidates the one

114 For legislative history of this, see Fisher, Presidential Spending Power, at 154-56. 11588 Stat. 332. Also see Fisher, Presidential Spending Power, at 156-57.

116 The rationale for the distinction between rescissions and deferrals has been described as follows:

"When the President does not anticipate any current or prospective need for funds, or when withheld funds would lapse before they are scheduled for release, he must ask Congress to rescind the appropriation. Deferrals are to be proposed when the President anticipates further but not current need for the funds." Allen Schick, Congress and Money, at 401.

117 Id. at 402; letter of the Comptroller General to Representative James J. Floria, September 28, 1976.

house veto of deferrals. However, the impact upon the Impoundment Control Act was minimized since Congress had previously developed the practice of rejecting deferrals through language in appropriation bills, which were subject to the full legislative process, rather than by one-house impoundment resolutions.118

ALTERNATIVE OF SELECTIVE REALLOCATION

The opportunity for the President to reallocate funding between programs or to discriminate against particular projects dates back to the Nineteenth Century. A particularly obvious type of discriminatory allocation of lump-sum accounts occurred with respect to public works laws, where a President might choose to carry out certain projects while ignoring others. Selective direction of funds provided an effective method of political reward or punishment. For example, in the 1850's President Buchanan chose to retaliate against the Illinois delegation by withholding from their districts funds scheduled for post offices and other public buildings. This led Senator Stephen Douglas to deliver a floor statement explaining how the appropriations act of 1857 failed to benefit the State of Illinois. 119

About two decades later, in 1876, President Grant objected to particular projects contained in a rivers and harbors bill. He announced upon signing the legislation that he planned to refuse to spend the funds on projects that were "of purely private or local interest." 120 Such presidential discretion in selecting or rejecting particular projects for funding seems very similar to the exercise of an item veto.

In the period after 1945 the number of appropriation accounts declined, lump-sum appropriations increased, the concept of reprogramming emerged, and congressional committees strengthened oversight controls. In 1956 the House Appropriations Committee advised the Army Corps of Engineers not to shift funds to any project in excess of fifteen percent of the original amount available for it and also requested that all reprogramming actions of $100,000 or more be reported to the Committee. 121 The following year a conference report reviewed reprogramming in the Bureau of Reclamation, reiterated the fifteen percent maximum, and also called for other restrictions and reporting requirements.122

Despite the efforts to tighten congressional oversight of reprogramming, evidence suggests that the Executive Branch did not always adhere to committee controls. For example, in 1970 the Senate Appropriations Committee expressed disappointment that certain education funds had been shifted without its knowledge, despite prior agreements that program increases or cutbacks be cleared with the congressional committees before making final de

118 Louis Fisher, "Chadha's Impact on the Budget Process," Congressional Research Service Review (Special Issue, Fall 1983), at 12.

119 Cong. Globe, 36th Cong., 2d Sess. 1177 (1861), cited in Fisher, Constitutional Conflicts between Congress and the President, at 155.

120 9 Richardson, Messages and Papers of the Presidents 4331 (August 14, 1876). Cited by Fisher, Constitutional Conflicts, at 155.

121 H. Rep. No. 2181, 84th Cong., 2d Sess. 19 (1956). Cited by Fisher, Presidential Spending Power, at 78.

122 H. Rep. No. 1049, 85th Cong., 1st Sess. 11 (1957). Cited id. at 78.

cisions. A few months later, in another report, the Committee conveyed a similar warning with respect to other programs then administered by the Department of Health, Education, and Welfare.123 By 1974 the House Appropriations Committee felt it necessary to restate its principles on reprogramming for the Department of Interior and 26 other agencies, since the procedures involving Committee notification and approval were not "uniformly understood" by the agencies. 124

Congress has attempted to apply the Impoundment Control Act to supervise selective allocation (or explicit discrimination) among programs funded by the same lump-sum appropriation. However, the Comptroller General has ruled that reprogramming does not constitute an impoundment action so long as there is no net withholding of funds. The ruling by the General Accounting Office occurred in 1977 when President Carter sought to terminate the Clinch River breeder reactor project. The Comptroller General held that reallocation of funds did not violate the Impoundment Control Act. In a letter to Senator Henry Jackson, dated June 23, 1977, the Comptroller General ruled:

The Act is concerned with the rescission or deferral of budget authority, not the rescission or deferral of programs. Thus a lump-sum appropriation for programs A, B, and C used to carry out only program C would not necessarily indicate the existence of impoundments regarding programs A and B. So long as all budgetary resources were used for program C, no impoundment would occur even though activities A and B remain unfunded. 125

A 1984 opinion from the U.S. Court of Appeals for the District of Columbia Circuit substantiated this interpretation. 126

The case involved a $3.7 billion lump-sum appropriation for fiscal year 1982 for the Department of Labor's Employment and Training Administration, "for expenses necessary to carry into effect" a training program authorized by the Trade Act of 1974 and four other programs. Secretary of Labor Donovan denied funds to the training program. Judge Scalia concluded that the case was not like the impoundment cases of the early 1970's which "involved appropriated funds earmarked for the particular program that the Executive refused to implement or a program which required rather than merely authorized the Executive to confer statutory entitlements." 127 In short, the opinion reiterated the 1977 GAO ruling by holding that if you have a lump sum appropriated for programs A, B, C, D, and E-all of them of a permissive and not mandatory nature-and the Executive decides for whatever reason to allocate no funds to program A, there is no judicial recourse under the Impoundment Control Act.

123 S. Rep. No. 871, 91st Cong., 2d Sess. 3 (1970); and S. Rep. No. 1335, 91st Cong., 2d Sess. 5-6 (1970). Both cited id. at 79.

124 H. Rep. No. 1209, 93rd Cong., 2d Sess. 12-13 (1974). Cited id. at 80.

125 Cited by Schick, Congress and Money, at 410. But this attempt by President Carter to exercise a de facto item veto was not permissible, according to the GAO interpretation, for another reason. Elsewhere in the decision the Comptroller General held that the use of the funds to terminate the Clinch River project violated federal law which prohibits expenditure of funds for unauthorized purposes. Curiously, as Schick noted, "Having reached this conclusion, the Comptroller General might have reasoned that since the money should not be spent on termination, failure to spend it for intended purposes violated the Impoundment Control Act." Id. at 410. 126 International Union et al. v. Donovan, Civil Actions Nos. 83-1918 and 83-2082 (D.C. Cir. October 23, 1984), memorandum opinion.

127 Id. at 14.

The Scalia decision highlighted the discretion available to agency heads who administer lump-sum appropriations. Referring to the Supreme Court decision in the case of Train v. City of New York 1975 which stated that "legislative intention, without more, is not legislation," Judge Scalia suggested this application to the Donovan

case:

The issue here is not how Congress expected or intended the Secretary to behave, but how it required him to behave, through the only means by which it can (as far as the courts are concerned, at least) require anything-the enactment of legislation. Our focus, in other words, must be upon the text of the appropriation.128

Given the general lack of judicial control over the nonstatutory nature of reprogramming, it is left to Congress to establish and enforce limits on Executive spending discretion. Probably the ultimate control over reprogramming remains the threat of future retaliation in appropriation laws if congressional guidelines are ignored too often or flaunted too flagrantly. But short of future legislative sanctions, the President, acting directly or through his agency heads, may continue to allocate lump sums selectively. The effect is similar to the exercise of item-veto authority.

ALTERNATIVE OF SELECTIVE ENFORCEMENT

Discussions concerning the possibility of granting the President item-veto authority often are limited to an appraisal of the device's utility with regard to appropriation laws. However, the item veto need not be so restricted. As the previous survey of state practices indicated, several governors are not limited to appropriation measures when exercising the item veto.

This section reviews instances in which Presidents have exercised what amounts to item vetoes over authorizing legislation. While signing these measures they notify Congress of their intention to disregard certain sections considered to be unconstitutional. Even some examples from appropriations bills closely resemble the selective enforcement pattern of authorization measures.

Selective enforcement dates back at least to 1830, when President Andrew Jackson signed a bill and advised Congress of his intention to restrict the reach of the law. His message of May 30, 1830, to Congress stipulated:

I have approved and signed the bill entitled "An act making appropriations for examinations and surveys, and also for certain works of internal improvement,” but as the phraseology of the section which appropriated the sum of $8,000 for the road from Detroit to Chicago may be construed to authorize the application of the appropriation for the continuance of the road beyond the limits of the Territory of Michigan, I desire to be understood as having approved this bill with the understanding that the road authorized by this section is not to be extended beyond the limits of the said Territory. 129

Apparently the House was recessed when the message arrived and could take no action. A subsequent committee report criticized Jackson's message as amounting to an item veto of one of the bill's provisions. 130

128 Id. at 11. Emphasis in original.

129 3 Richardson, Messages and Papers 1046 (May 30, 1830).

130 Fisher, Constitutional Conflicts between Congress and the President, at 155; H. Rep. No. 909, 27th Cong., 2nd Sess. (1842).