# Amicus Curiae Brief — Train v. Campaign Clean Water, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1612%3A15 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1975 - **Citation:** 420 U.S. 136 ## Text In the Supreme Court of the October Term 1973 Nos. 73-1377 and 73-1378 © RUSSELL E. TRAIN, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Petitioner, v. THE CITY OF NEW YORK ON BEHALF OF ITSELF AND ALL OTHER SIMILARLY SITUATED MUNICIPALITIES WITHIN THE STATE OF NEW YORK, ET AL., RUSSELL E. TRAIN, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Petitioner Vv. CAMPAIGN CLEAN WATER, INC., On Writs of Certiorari to the United States Court of Appeals for the District of Columbia and the Fourth Circuits BRIEF OF THE CENTER FOR GOVERNMENTAL RESPONSIBILITY AS AMICUS CURIAE iN SUrPORT OF THE CITY OF NEW YORK Fletcher N. Baldwin, Jr. Jor L. Mills Attorneys, Center for Governmental Responsibility Holland Law Center Gainesville, Florida 32611 TABLE OF CONTENTS we ey | See Per eE es here Cr yee eee eee STATEMENT OF INTEREST OF AMICUS CREPES in bio den ss th RdKKdR DOSER CHP SCRE CORE Rad cee STA Fe eee GE nk po ceesens at stoneckias BUMMARY OF ARGURBEINS 56 cckseeceve res ves os 1 THE PLAIN MEANING AND LEGIS- LATIVE HISTORY OF THE ALLOTMENT PROVISIONS OF THE WATER POLLUTION CONTROLACT, TOGETHER WITH THE OVERALL STRUCTURE OF THE ACT. VN DEMONSTRATE THAT THE ADMINIS- TRATOR HAS NO DISCRETION TO tg) gi a BE) aa er errr A. THE HISTORY AND PLAIN MEANING OF THE AUTHORIZATION AND ALLOTMENT PROVISIONS (SECTION 205 AND SECTION 207) SHOW THAT ALLOTMENT IS MANDATORY. ....... 1. THE PLAIN MEANING OF THE ALLOTMENT PROVISION RE- QUIRES ALLOTMENT OF THE FULL SUMS LISTED IN SECTION BOF Sdn ven ebrs Ce Reh hak Gesevetieeinss THE LEGISLATIVE HISTORY OF SECTIONS 205 AND 207 SUPPORTS THE CONCLUSION THAT WHILE THERE IS DISCRETION WITHIN THE ACT TO CONTROL OBLIGA- tv Nee ee ee i TIONS. THERE IS NO DISCRETION AT THE ALLOTMENT PHASE. .... STATEMENTS IN LEGISLATIVE HISTORY REFERRING TO AU- THORITY TO “IMPOUND” CON- FER NO AUTHORITY TO REDUCE ALLOTMENTS. ie ee ee eo oe oe ie oe a a oe EXPRESS GOALS AND OVERALL FUNDING STRUCTURE Cr THE ACT DEMONSTRATE THAT ALLOTMENT OF AUTHORIZED SUMS IS MANDA- UME Nae a Shins e'ss Wis WN a G.0,bis'o. > GOALS OF THE ACT EXPRESS A NATIONAL COMMITMENT OF FUNDS TO RESTORE THE WATERS OF THE UNITEDSTATES .....:..-. PERMISSIVE OR MULTIPLE AL- LOTMENTS WOULD FRUSTRATE THE INTENT OF THE ACT TO EN- COURAGE LONG RANGE PLAN- THE INTERNAL LOGIC OF THE ACT READ WITH THE REALLOT- MENT PROVISION, SECTION 205 (b), INDICATES ALLOTMENT TO 15 18 oS 0) 25 SECTION 206 (f) (1). WHICH PRO- VIDES FOR ADVANCE OBLIGA- TION OF FUNDS AUTHORIZED FOR FUTURE ALLOTMENTS, IS MEANINGLESS UNLESS AL- LOTMENT IS MANDATORY. ...... 27 iii Page 5S. THE OBLIGATION PROVISION AS WRITTEN INDICATES THAT THE OBLIGATIONAL PHASE RATHER THAN THE ALLOTMENT PHASE IS DISCRETIONARY ....... C. ALLOTMENT IS A BUDGETARY MECHANISM WHICH IS BOTH GEN- ERALLY MANDATORY AND SPE- CIFICALLY MANDATORY IN THE ete ee ee ee | a ee D. EVEN IF DISCRETION IS FOUND, THE ADMINISTRATOR’S ACTION IN WITH- HOLDING FIFTY-FIVE PERCENT OF AUTHORIZED FUNDS WAS AN ABUSE OF DISCRETION IN LIGHT OF THE EXPRESSED GOALSOFTHE ACT ...... REFUSAL TO ALLOT FIFTY-FIVE PER- CENT OF THE AUTHORIZED FUNDS IS OUTSIDE THE CONSTITUTIONAL AUTHOR- ITY OF THE EXECUTIVE BRANCH...... AS TE. FATT RPULLY.-.. EAECUTE™ CLAUSE OF THE CONSTITUTION DOES NOT ACCORD DISCRETION TO REFUSE TO IMPLEMENT CONGRES- eo. Oe | ak Se ea at B. THE EXECUTIVE DOES NOT HAVE INHERENT AUTHORITY TO REFUSE TO CARRY OUT THE PURPOSES AND PROVISIONS OF CONGRESSIONAL PROGRAMS DULY ENACTED INTO 28 28 32 35 36 PEER LENSER EN FS PES HELIN AY ERNIE Se TN ee Te ae pe NS ad lot THE EXECUTIVE’S REFUSAL TO IM- PLEMENT THE WATER POLLUTION CONTROL ACT, EVEN AFTER PAS- SAGE OVER AN EXECUTIVE VETO, REPRESENTS AN UNCONSTITOU- TIONAL EXPANSION OF THE VETO at LS errr hres s Peer re rrr. Ill. THE SOVEREIGN IMMUNITY DOCTRINE IS NO BAR WHEN THE ADMINISTRATOR FAILS TO PERFORM A STATUTORY DUTY OR EXCEEDS HIS DISCRETION. «.....6.605; A. B. THE ADMINISTRATOR’S ACTIONS ARE IN VIOLATION OF HIS LEGAL DUTIES UNDER THE ACT AND CON- SEQUENTLY SUIT MAY BE BROUGHT THROUGH AN ““OFFICER SUIT.” A WELL ESTABLISHED EXCEPTION TO SOVEREIGN IMMUNITY ........... THE ADMINISTRATIVE PROCEDURE ACT OPERATES AS A WAIVER OF SOVEREIGN IMMUNITY AND PERMITS REVIEW OF THE ADMINIS- TRATOR » REFUSAL TO ALLOT ...... SOVEREIGN IMMUNITY IS SPECIFI- CALLY WAIVED BY SECTION 505 OF THE WATER POLLUTION CONTROL DETERMINING THE ADMINISTRATOR'S AUTHORITY TO ALLOT LESS THAN AU- THORIZEDAMOUNTSISJUSTICIABLEAND NOT BARRED FROM REVIEW BY THE PO- LITICAL QUESTION DOCTRINE OR THE ADMINISTRATIVE PROCEDURE ACT 48 49 55 1 rtd <5 C ane eben dai \ A. REVIEW OF THE ADMINISTRATOR'S FAILURE TO COMPLY WITH THE AL- LOTMENT PROVISION OF THE WATER POLLUTION CONTROL ACT IS JUSTICIABLE AND NOT A“ POLITI- CR Sree eS Re sak yoda een aD 63 B. THE ADMINISTRATIVE PROCEDURE ACT DOES NOT BAR REVIEW AS A MATTER COMMITTED TO AGENCY °- a ee BPs Ss a oe ee ca hk AED 66 Ae PR NE, Ga ene ech Keb dered eae Sere RSS 68 PE ech cea casio oles Mae een sieea Cae 69 Shao neediest NT LPN I TS PIE REIN. rd Rs CTL a ied AROS, Se te a 5 Si ddan stan Diiecitctosrabhdesesivaistocas mow: VI CITATIONS q CASES Page : American Ass'n of Colleges of Podiatric Medicine v. 4 Ash, Civil No. 1139-73 (D.D.C., Oct 26, 1973). .... 44 > Arp vy. United States, 244 F.2d 571 (10th Cir.), cert. 4 BPS fee Dy Oe DE) eg ee a . 58 ; Baker v. Carr, 369 U. S. 186(1962) ............. 63 - 65 : Blackmar v. Guerre, 342 U.S. 512 (1952).......... . 55 Boyden v. Comm’r of Patents, 441 F.2d 1041(D.C. Cir.), CFT. Weed, Mee We PUR AIOUED Leick ns ccc h end eas 7 Brown v. Ruckelshaus, 364 F. Supp. 258 (C.D. Cal. PREP ect cee oa Aie Der a aaleceel 14, 49, 51, 53, 58, 64 Campaign Clean Water. Inc. v. Ruckelshaus, 361 F. Supp. 689 (E.D. Va.). remanded with directions sub nom. Campaign Clean Water. Inc. v. Train, 489 F.2d 492 BON | 26) Beker nen ne 14, 32, 49, 51, 64, 65 Church of the Holy Trinity v. United States, 143 U.S.457 COE ec tara ee AW kok ars Case aa ae te Nekoi 94 7 Clakamas County v. McKay. 219 F.2d 479 (D.C. C1 1954). vacated as moot, 349 U.S. 909 (19SS) 2.2.0... 55 Citizens to Preserve Overton Park, Inc. v. Volpe. 401 GE AE Sa) tk | er ay ieee ee rr ee ey 33, 66, 67 City-wide Coalition v. Philadelphia Housing Auth., 356 ee ag RS a t) eee eee 60 Community Action Programs Executive Directors Ass'n of New Jersey. Inc. v. Ash. 365 F. Supp. 1355 fan? oP eA ee Cs inte a ec aay elon gaia eae oe 44 Constructores Civiles de Centroumerica, S.A. v. Hannah, 459 F.2d 1183 (D.C. Cir. 1972) ........... 56 Dugan v. Rank, 372 U.S. 609 (1963) ..............--. 50 Estrada v. Ahrens. 296 F.2d 690 (Sth Cir. 1961)....... 56 Florida v. Train, No. 73-156 (N.D. Fla.. Feb. 25, 1974), appeal argued, Civil No. 73-3965, Sth Cir.. Apr. 29. DP es ee ae Sea eke a eek Bol eral ae Wines OX $1 _ , ———E Cases - Continued Page The Floyd Acceptances, 74 U.S. (7 Wall.) 666 (1868). . 50 Fong Yue Ting v. United States, 149 U.S. 698 (1893). A3 Guadamuz v. Ash, 368 F. Supp. 1233 (D.D.C. 1973). 8, 41, 44, 47, 49, 64 GARAA CAR. fan eee ee a ee ee ee i ee ee | ee Hamilton v. Rathbone, 175 U.S. 414 (1899) .......... s Highland Park v. Train, 374 F. Supp, 758 (N.D. Ill. ce ER RA SORES TAs ire are ei errata tL 60 Housing Authority of San Francisco v. HUD. we © ee, Sa 0 FBT ooo os vs Seen aes 49, 52 sm Ree CRE, TIF Uo, FETRO) sce hecc netics ede cas 46 Iselin v. United States, 270 U.S. 245 (1925)........... 9 Kendall v. United States ex rel. Stokes. 37 U.S. (12 Pet.) UN CAS ocd! tees pases Cxnceene cree eee s 41 Kietsckka v. Driver. 411 F.2d 436 (2d Cir. 1969) ...... 56 Land v. Doar, 530 US. TSU CSR) oi ccc ces tees 49, 52 Larson v. Domestic & Foreign Commerce Corp.. 337 iP RAE reas sah eee Reo ests ee ia toa 50, 52 Lee Fook Chuey v. Immigration & Naturalization Serv., 439 F.2d 244 (Sth Cir. (1970) .............-.. 19 Legal Tender Cases. 79 U.S. (12 Wall.) 457 (1871) .... = 48 Liverpool Borough Bank v. Turner. 45 Eng. Repr. 715 (700), ay dd, FO Cae, Hee: FOS oe a ie ve cess 19, 20 Local 2677, AFGE v. Phillips. 358 F. Supp. 60(D. D.C. Pee ini Eas Coen ere an eee 41, 44, 49, 54, 56, 64 Louisiana v. Weinberger. 369 F. Supp. 856 (E.D. La. BPTI cbt ta vee ree cave ee tie a hee 40, 44, 49, 51, 64 Marbury v. Madison, § U.S. (1 Cranch) 137 (1803).... 63 Martin-Trigona v. Ruckelshaus. No. 72-3044 (N.D. Il.. : PR Se Tee hn i cir ars bane oe eee Le 14 ; Massachusetts v. Weinberger. Civil No. 1308-73 : (D.D.C.. July 26, 1973). reprinted in 119 CONG. REC. 4 $15044 (daily ed. July 30, 1973) ............. 40, 44, 64 Miller v. Amusement Enterprises, Inc.. 394 F.2d 342 (Sth P ee i ee ee i9 §£ Minnesota v. USEPA, No. 4-73 Civ. 133 (D. Minn.. ; 4 % June 25, 1973). appeal argued, Civil No. 73-1446, Se Meals Ss ORs PEPE eet rab Gbeve reees soe ke eh 31 vm Cases - Continued Page Montgomery Environmental Coalition v. Fr, 366 F. Supp. 261 (1D. D.C. V9TB ww eee 0, 61 National Council of Community Mental Health Cemers. Inc. v. Weinberger. 461 F. Supp. 897(D. D.C. 197%) Bt a tpn Pp EE ba yp _.o. ofl, 44, 47, 49, 53, 63, 64 NLRB v. Fruit & Veg. Packers. Local 760, 377 U.S. s#\ GO 50d04scednctcassoucsecaseasdesasusadus 15 National League for Nursing v. Ash. Civil No. 1316-73 CE Tcc AT TR POTD dnvebesopcbunsacscoasen “a National Treasury Employees Union v. Nixon. ” F. 2d $87 (1974)....... ra Cee Tabane ... 41, 52, 64,6 New York v. Ruckelshaus. 358 F.Supp. 669 (D. DLC 1973). aff'd sub nom. New York ¥. Train, 494 F 2d 1033 (D.C. Cir. 1974)... o.oo eee eee eean 31. Si. SB, 64 New York v. Train, 494 F.2d 10334 D.C. Cir, 1974). Ssneeeehvatsdaaipeadeaenae 12, 14, 22, 24 - 27, 30, 31, 49, Si Oklehoma v. Weinberger. M0 F. Supp. 724(W.D. Oble OTOP cisdeDecdaphondicqeesveceasss “a Pealo v Farmers Home Administration. 361 F Supr 1320 (1973)... ; 65 Richards v. United States. wo US. 111962) 19 Riverside v. Ruckelshaus, 4 ERC 1728 (C.D. Cal 1972) @ - 61 Rockbridge v. Lincoln, 449 F.2d 567 (9th Cir, 1971) 50, GB, 54 San Francisco Redevelopment Agency +. Nixon, 529 F. Supp. 672 (N.D. Cal. 1971) 0m Scanwell Labs.. Inc. v. Shaffer, 42.4 F 24891 D.C. Cw 1970) . cane we Seafarers lat Union of N. America + Weinberger. 63 F.Supp. 1083(D.D.C. 197) “1. Shapiro v. United States, 3348 U.S. (194m) P) Stunfield v. Swenson, 11 F 2d 754 (th Cw. 1967) 7 Sturges v. Crowninshield, 17 US. (4 Wheat.) 122 (180%) * State Highway Comm'n v. Volpe, 479 F.2d 1099 (meh Cir, 1973)... : 16, 18, 19, 28, 30, 34, 39, 49, 54, 66 Texas +. Fri. No. A-7)-CA-I80W_D. Tea... Oot. 2, 1979), — argued, No, 74-3968, Sth Cw. Apel 29. 1974 14, 24, 31, Udell +. Wikcomese, MP DE MD Ce MD co devied, FU S were Veited States + Curtioe rate Paget Cane Oe U.S. Was (vie “ a ee ee «1952» re bo é Ct Umned States + Monette. 848 © & F38 ( fet rf Umed Sates + Madeot CA Ce 20S ACh ogg ge Aa eo a U.S. 77 «tet . no — » r cs Ummed Stutee © Sevcubaten, WP Sap Wee DM Ow Wamers Con, 2 Fd ieee Ce ee Wieteagton + Uda. 41° § Od eee Ce ee Wowterge + Heme Beko & Gene te oF 1. S ae char iy Vounptows Suet A Tate Ce + Seve MP 8 © S79 ( 19ED) 2 2) CC .*% Coast at i i. & Cornet at il Reber sting Phen ardiee Ran Sache OP Or OD MAF Lae OO We USC. OMe eee 1 TD is © SC eee 230 SC COM oe ww MLSC Ont ML BREC SiRe ey MUSC Ohi * ( omecdattest ace ated St atette. ( comtomaned Pom MLS. 8haN aa ” wise. on i » wis” §SBte-1 (Supp Wray 16 WESC fmt igs 17 wisc vw isesceshs pas) S90 SCA, 8787 ah, este Gasp. EP st se : SiD21 (Sapp. 1974) save x) federal Water Pollution Comal Act Amendments of 1972, Pub 1. Neo. ODS (Chet. 18, 1972 Set Bin, SSL SO A SSID et ww, (Sapp. 197%) S101 ta . wanes |] St tas nia p Pa ; iacnedeesnscaseeue $s | P-] se | 6. 9, 13, 23, 25. 26, 29 Sm thal ae ae Zi oe aees 6. ‘10, 31, @2 $M? 4% 7 saws 57, Hh, @, 42 a> 1 Sa 90ian.ts 420 S.C S187 be 2 che Pub 1 Neo OD iM daly 1. 1972). Oe See oy Poh 1 No 92-899 ther 27. 1972), Oe See 1824 37. Poh 1 No OR SR adaly 1, 197%), 87 Soe 18s Poh 1. Neo GRITS (Dee. 1, 197%), 87 Sue, i Poh 1 Neo OR Add a bady 12, 1974) MISCELLANEOUS ApVvisoRy CoMman ON INTEROGOVERNMENT AL Rit ations, Tut Garp Between Fioreas AUTHORIZATIONS Aib ASD APPROPRIATIONS Fisc at Ve ams 1966 1970 (1970). ye pad THe Beport OF THe USitbo States Govens MENT. APPENDIX (197%). as S. Bantry. Conouess Manis A Law ™ STOR? Hi HIND THE EMPLOYMENT ACT OF 1946 (1990) Vw 40 C PR. 984. Stan i972) Dendedunsbscetcccuae 40C FR. SUNS S bP EIOTS, 0... oe a Comment, Presidential Impoundment of J nds The Judicial Response, MU. CHL. Rev VII). 9 CONG Rec WN-448 (1947)... * 116 CONG Ric 74001970)... . B 117 CONG Rec daily ed. Now. 2. 1971) 2.24 HIF CONG Rec idaily ed. Mar. 29. 1972) . 2 HR CONG Rec idaily ed. Oct. 4, 1972) 10, 11, pave 16, 18, 20, 21, 34 18 CONG REC (daily ed. Oct. 10, 1972) * HR CONG Kec idaily od. Oct. 17, 1972) .. 13, 20. 22, a8 118 CONG Rec tdaily ed. Oct. 18, 1972) » 119CONG Rec. tdaily od. July W, 197%) 0, 4, 4 119 CONG Rec idaily ed. Now. 27. 197%) t+ 0. 45 1M CONG. Rec tdaily ed. Mar 28, 1974) » 1 CONG. REC daily ed, June 21, 1974) * IM CONG Rec daily od. July 18, 1974) 65 b. Comwin, Tt Peesipe st OFfich ASD Powtes (4th ed. 19%1) : “ SJ. Bidston, Dewates On Tet Anportion OF Taw Fite mal CONSTITUTION (ed. 1941) 1 Fisher, Presidential Spending Discretion and Convers. jonmal C antrols, 1972) 7 Lawa CONTIMP Prom 144 45 Miscellaneous - Continued Page Fisher. Impoundment of Funds: Uses and Abuses, 23 BUFFALO L. REV. 141 (1973). .........000006- 4.46 L. FisHer. COURT Cases ON IMPOUNDMENT OF FUNDS A PUBLIC POLICY ANAL YSIS. (Congress- ional Research Service. Library of Congress. multilith. ns iar creed ees dees eave kere eae bie io 51 Hearings on Executive Impoundment of Appropriated Funds Before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 924 Cong... Ist TE aap hoe ov dar secoubasiieesrictni W, 39, 46 Hearings on “Sovercien Immunity” Before the Sub- comm. on Administrative Practice and Procedure of the Senate Comm. on the Judiciary, 9ist Cong.. 2d SL GED bobs vane dacodabncseud pahwelsa0ees eres 49 H. KR. Doc. NO. 98, 69th Cong. Ist Sess. (1927) ..... 42 H. KR. REP No. 1797, Bist Cong.. 2d Sess. (1951) ....- 17 H. KR. Rev. No. 1465, 92d Cong.. 2d Sess. (1972) .. . 12, 29 H. KR. ReP No. 1606, 92d Cong... 2d Sess. (1972)... .. 35 H. KR. Rep. No. 1614, 92d Cong.. 2d Sess. (1972)..... 38 H. KR. Rev No. 1101, 93d Cong.. 2d Sess. (1974) . 65 Joint Hearings on §. 373 Before the Ad Hoe Subcomm. on Impoundment of Funds of the Senate Comm. on Government Operations and the Subcomm., on Separa- tion of Powers of the Senate Comm. on the Judiciary, 93d Cong.. Ist Sess. (1973) .............. 17, 44, 46, 48 Letter from President Nixon to William D. Ruckelshaus. EPA Administrator, November 22. 1972. reproduced in Hearines on Federal Budget for 1974 Before the House Comm. on Appropriations, Wd Cong... Ist MET EE vbr thos tadecdenderdavecsseates 44 Letter from Franklin Delano Roosevelt reproduced in part in Hearings on H.R. 3598 Before a Subcomm. of the Senate Comm. on Appropriations, T&h Cong... Ist is San csea chin dlevedeseenene oweneceneses 45 Levinson & Mills. Impoundment: A Search for Legal Principles, 26 U. FLA. L. Rev. 191 (1974)5, 40, 43, 44, 46 ee ee Oa su Miscellaneous - Continued Page Levinson & Mills, Budget Reform and impoundment Control, 27 VAND. L. REV. 615 (1974) ............. Library of Congress. A Legislative History of the Water Pollution Control Act Amendments of 1972 (1973) ... Findings of McIntosh Foundation Executive Impound- ment Project. 119 CONG. REC. $21120 (daily ed. Nov. Meee Lidga sos ck bo ob baeb sed be cb bee sesedchon 40, 45 Memo from William Rehnquist reproduced inJoint Hear- ines on 8S. 373 Before the Ad Hoc Subcomm. on Impoundment of Funds of the Senate Comm. on Government Operations and the Subcomm. on Separa- tion of Powers of the Senate Comm. on the Judiciary, 93d Cong.. Ist Sess. 390, 394 (1973) ............... 41 Miller. Impoundment: The New Constitutional Crises, THE PROGRESSIVE. March, 1973.................. 44 N.Y. Times, April 20, 1973. at I1.col.5.................. 45 Note. /mpoundment of Funds, 86 HARV. L. REV. 1505 "Rs Se ee ee rere Tre 37, 38, 45 Note. The Item Veto in the American Constitutional System, 25 GEO. L. J. 106 (1936)................ 48 Note. Protecting the Fisc: Executive Impoundment and Congressional Power, 82 YALE L. J. 1636 SE ary scanner eSasshner detest tosedese 65 OMB Report Under Federal acenaeued & Informa- tion Act: 38 Fed. Reg. 19.581-82 (1973) ............-.-008- 40, 47 39 Fed. Reg. 7707, 7708 (1974) ................... 16, 39 PUBLIC PAPERS OF THE PRESIDENT. State of the Union Me Es Pe Cob er ca cewaee ei ade oe nse s> 5 P. Rome RTS. MODERN GRAMMAR (1968).........--. 13 S. Rev No 414. 92d Cong... Ist Sess.(1971) .......-. 59 S. REP No. 1292. 92d Cong. 2d Sess. (1972) ......... 37, 38 S. Ree No. 249, 93d Cong.. Ist Sess. (1973) ......... 37 Shinn. The Federal Grant Program to Aid Construction of VUunicipal Sewage Treatment Plants: A Survey of the 1972 FWPCA Amendments, 48 TUL. L. REV. 85 Sia a ater oe ew It ee Ooo ee en oe hy 29 Qveen--- - aoe nes eo - NIN Miscellaneous - Continued Stanton. The Presidency and the Purse: Impoundment 1803 - 1973, 45 U. COLO. L. REV. 25 (1973) ........ Student Project. Federal Administrative Law Develop- ments - 1971, 1972 DUKE L. REV. TIS) oo... ‘vs U.S. BUREAU OF THE BUDGET. EXAMINER'S HANDBOOK (1952) (quoted by J. Williams. The Im- poundment of Funds by the Bureau of the Budget (1955) cited in Joint Hearings on §. 373 Before the Ad Hoc Subcomm. on Impoundment of Funds of the Senate Comm. on Government Operations and the Subcomm,. on Separation of Powers of the Senate Page Comm. on the Judiciary, 934 Cong, Ist Sess. (1973),17, 18 1972 U. S. CODE CONG. & ADM. NEWS __........... USEPA. Report to the Congress: Costs of Construction of Publicly-Owned Wastewater Treatment Works A-2, PUREE Sab 20s biked sees sa CObs co nb serene bEsie> U. S. OFFICE OF MANAGEMENT & BUDGET. CIR- CULAR NO. A-34. INSTRUCTIONS ON BUDGET Mee CURE ED oc vhbs ciesvasecsccssaeduee can R. WALLACE. CONGRESSIONAL CONTROL OF FEDERAL SPENDING (1960) .........ccccccceeees 9 WEEKLY COMPILATION OF PRESIDENTIAL Doc. CURSO Ee CORTON aids sce cece hots bk ckh belek tee ee Williams. The Impounding of Funds by the Bureau of the Budget, reprinted in Joint Hearings on 8. 373 Before the Ad Hoe Subcomm. on Impoundment of Funds of the Senate Comm. on Government Operations and the Subcomm. on Separation of Powers of the Senate Comm, on the Judiciary, 934 Cong.. Ist Sess. (1973) PHHORPSEHHEBAaCCHP PES VPAOVM SAD CSC G ORE RCC HC eOBAO PCTS LOS 48 42 45 sy STATEMENT OF INTEREST OF AMICUS CURIAE The Center for Governmental Responsibility files this brief as amicus curiae under rule 42 (2) with the consent of both Re- spondents and Petitioner. The Center is a privately funded non-partisan. non-profit organization housed at the University of Florida College of Law committed to the goal of promoting the ac- countability of government officials and institutions to the public. Its interest in this case emanates from its detailed study of the impoundment controversy and its effort to imple- ment its scholarly conclusions. The year and one-half study was conducted by the Center's predecessor, the McIntosh Foundation Executive Impoundment Project.” whose sum- mary findings have been reproduced at 119 CONG. REC. $21120 (daily ed. Nov. 27, 1973). The Center has continued the study of the impoundment issue to date. The study has pro- duced. among other things. two law review articles: Levinson & Mills. Impoundment: A Search for Legal Principles, 26 ©. FLA. L. REV. 191 (1974): Levinson & Mills, Budget Reform and Impoundment Control, 27 VAND. L. REV. 618 (1974). Further. the Center has acted as amicus curiae on the issue in the instant case in three courts: Minnesota v. Train, No. 73-1446 (Sth Cir.. argued Feb. 13. 1974); Texas v. Train, No. 73-3965 (Sth Cir.. argued Apr. 29. 1974); and Florida v. Train, No. 73-156 (N.D. Fla. Feb. 25. 1974). appeal argued, Civil No. 73-3965, Sth Cir.. Apr. 29. 1974. The Center's special interest is in the legal development and resolution of federal impoundment Issues. *This project is further described in Joint Hearings on $.373 Before the Ad Hoe Subcomm., on Impoundment of Funds of the Senate Comm. on Government Operations and the Subcomm, on Separation of Powers of the Senate Comm. on the Judiciary, 93d Cong.. Ist Sess. 22 (1973). In the Supreme Court of the United States October Term. 1973 Nos. 75-1377 and 73-1378 RUSSELL FE. TRAIN, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. Petitioner ’. THE CITY OF NEW YORK ON BEHALF OF ITSELF AND ALL OTHER SIMILARLY SITUATED MUNICIPALITIES WITHIN THE STATE OF NEW YORK. ET AL.. RUSSELL E. TRAIN, ADMINISTRATOR. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. Petitioner y CAMPAIGN CLEAN WATER, INC.. On Writs of Certiorari to the United States Court of Appeals for the District of Columbia and the Fourth Circuits BRIEF OF THE CENTER FOR GOVERNMENTAL RESPONSIBILITY AS AMICUS CURIAE IN SUPPORT OF THE CITY OF NEW YORK ! SA SPR ET SF 5 NOREEN SS NR aR BQeeraercese ee y STATEMENT OF THE FACTS In 1972. Congress passed the most extensive program for cleaning the nation’s waters in history. The Federal Water Pollution Control Act Amendments of 1972 [hereafter cited as the “"Water Pollution Control Act’ or the “*Act™’} established as a national goal the achievement of clean waters in America by 1985. Congressional hearings on the proposed legislation were extensive. The bill passed the Senate by a vote of 74 to 0 anu the House by 336 to II. On October 17, 1972, the President vetoed the bill because of what he termed “‘inflationary considerations.”” Congress considered the veto message and overwhelmingly overrode the veto. In the House, the vote was 247 to 23: in the Senate. 52 to 12. Subsequently. on November 22, 1972, President Nixon ordered the Administrator of the Environmental Protection Agency not to allot the full amount provided in the final bill. Nixon ordered allotment of two billion dollars in fiscal year 1973 and three billion dollars in fiscal 1974. The amounts established in the bill were five billion dollars for fiscal 1973 and six billion dollars for fiscal 1974. The result was a cut- back of fifty-five percent of the funding provided by Congress. 3 SUMMARY OF ARGUMENT The principal question posited by the instant case is whether the Administrator of the Environmental Protection Agency has discretion to refuse to allot the full amounts author- ized by the Water Pollution Control Act. The statutory history and the overall structure of the statute demonstrate that the allotment provision is mandatory. There is no state- ment in legislative history stating that allotment is discre- tionary. while one of the principal sponsors of the bill directly stated that allotment is mandatory. Spending discretion exists, but at the obligation phase rather than at allotment. Additionally, the overall scheme of the statute demonstrates the desire of Congress to provide long range planning certainty to achieve total restoration of the nation’s waters by 1985. This purpose is best accomplished through a mandatory allotment schedule coupled with some discretion in the obligation phase. There is a substantial negative impact on long range state planning when there is an exercise of discre- tion at allotment as distinguished from exercise of discretion at obligation. While the statute will operate well with manda- tory allotment, insertion of discretionary allotment would cause illogical results. Refusal to allot in full will cause perma- net loss of funds for obligation. At whatever stage of the funding process. refusa! to allot or expend fifty-five percent of the Water Pollution Control Act funds would be an abuse of discretion. Congress intended to provide funding for the solution of water pollution problems which would be available to the states. Fifty-five percent impoundment. substantially curtailing implementation of the program, is beyond the discretion of the Administrator. Fur- ther, justifications given as the basis for the refusal to allot were improper reasons outside the realm of relevant considerations: therefore. any exercise of discretion on this basis is improper. pete ’ at . f x ‘ Sey We neyo seers nt aie sebiwisccnanbeh eee: Spel CRA Saag, 23 selec Atria key Sein os fa Se Roky ay Weahs Dietetic eleteeete ean meccticietc ac toncenaieresaiei: 4 Actions by the Administrator were not only outside his Statutory authority but also beyond his constitutional authority. Neither the “faithfully execute’ clause nor “inherent authority” support executive action in refusing to allot. Cases considering constitutional authority of the executive branch have consistently held it to be limited when impinging upon the intent of Congress. especially in the domestic area. Further, the refusal to allot after a veto of the Act had been overriden operated as an unconstitu- tional absolute veto. Sovereign immunity is no bar to the suit against the Administrator: first, because of the well established exception of “officer suit” and, second. because the Administrative Procedure Act waives sovereign immunity. Similarly. political question is no bar to justiciability in the instant case since clear standards exist for judicial review and there is no‘ absolute commitment to a coordinate branch of the absolute power to spend or not to spend. In sum. there is no bar to judicial review of the action of the Administrator in refusing to allot. Further. these actions were in contravention of the explicit provisions and purposes of the Act and the Constitution. § ARGUMENT THE PLAIN MEANING AND LEGISLATIVE HIS- TORY OF THE ALLOTMENT PROVISIONS OF THE WATER POLLUTION CONTROL ACT. TOGETHER WITH THE OVERALL STRUCTURE OF THE ACT. DEMONSTRATE THAT THE ADMINISTRATOR HAS NO DISC .L TION TO REFUSE TO ALLOT, The issue in the instant case is the meaning of the allot- ment phase of the Water Pollution Control Act -- not the academic issue of the mandatory or permissive nature of appropriations generally.' The precise question before the Court is whether the allotment provision is mandatory and requires the Administrator to allet the full sums authorized by Congress. To determine whether an action within the funding process is mandatory. it is imperative to analyze not only that particular provision, but all relevant ‘For discussion of the general issue. see Levinson A Mills. Jeypennd ment: A Search for Legal Principles, 26 U. Fia lL. Rev Wt, 2401974) No generalization can be made about the mandatory nature of Vanwus phases of the spending process. There must however be reference to the particular budgetary provision with the other relevant provisions of the appropriations act. In fact, President Nixon, in vetoing an HEW-ORO appropriation recognized the possible effect of statutory language [Nearly nine tenths of these increases are for mandatory programs which leave the executive branch no discretion whatever as to the lev et or the purpose of the added expenditures Pustic Parexs Or THe PResipent. State of the Union Address Jun. 27, 1970. at 22 A THE HISTORY AND FEIN MEANING CF Tite AUTHORIZATION 42D ALLOTMENT Perry reeres SECTION 28 200 SECTION De) Shem Tat OF LOTMENT 8 MANDATORY $207 Tikete o> aathho ined to he agpe prided fe awry caut tne tithe fw the fecal pew ending bene 1979 eT ee Be ne a ea fe et, he tha thea pated o eaertndlad Hy eh a emeretiee Em Hie Oo trees tie Ren eaveedhe vee Meo cauttnewenoaedl aanndban case thane ROP Aye Mae ogpppnenaprenettnndl (better rave at ee pees ot te et Me OY ee wee ee ited Ce cate Heqarte emetiditie Ae te otter ter thin =e Sefetmetie eter ee eee Gt SPThy ettesnin aH! HE ateites tel oe apelitews te Aeron tee et eT spre Oe content netted! Age etteNtt Hkaee r,t Pe ce ec a ee) ee ee Be PRere Heke CFG HOES CHOW SF ow eh CER E 28 ORO E HOt Fe ae Hee Or oe 6 Be ee RR RE CH hr er cnen. Creed 6 Orem GeO ae CT ee ae " ee ie ee ew ee tle crete 4: NINE ortttene sevatibvte Getter fitter eee we ee fe Pr OTT en Ae hee a ee ee ee ee withoce dew @oemiente appa de Oe « tate am C emngeeee atten Hee ce the QAR Eater te gener! aipreepettny of atime Mande han ‘iu ted deo ghee pee Conedewy « Sh OF fp 3 Oa eee FH have done so caplicitly. The clause could have toad uuthotized to be allotted and appropriated not to exes..." Whee comidered in and of itself, the Act is clear in de- chasing that the Adminntrator shall allot the amounts opecified. There is no need to resort to legislative history adittacmagty thd thercdanty alloas cagggrante the tmatalatenty nature of alhodemg et 2 THE LEGISLATIVE HISTORY OF SECTIONS ws AND D087 SUPPORTS THE CONCLUSION THAT WHILE THERE 1S) (DISCRETION WITHIN THE ACT TO CONTROL OBLIGATIONS, THERE 18 NO DISCRETION AT THE ALLOT- MENT PHASE The facws of the statutory comtroversy in the ietant cave is the interpretation of the incheion or omimaon of three words and phrunes within sectaane 20 und 207 during the coractment of the Water Pollan Comtrol Act 1) deletion of “all” i section 20S (a) by the conference sential ee (AM) canes aerttmticed ta tre agnpengei nated gout sciadet tar cota 307 few cach fixcal peat hegmmng after June 0972 olaalll tae alllktignd Poy tae Aahomameets atom ‘D) ahdtkom of mot to erceed” befowe the sume specified me eoction 307 There o> authorized to he approgiiated tar Carty cust this title other thee $6208 and 09, for the fecal peur ond ing Jame . 1973. (mot to erceed) $5,000,000 amp, cs a ee ee a> ptlvewe eed Peer ee Ln kB Bd att ints Casts ll @ others wee eee en ee ee proomntithy ho aaMaawede ation Me ame lade’ © dhe Ge og out Hae oungpptle wwe amewomnds Gre guduad Meme = heotign © 1 aetiet States rw oe we ee ee th) for the fiscal year ending !une W. 1973. (not to exceed) Picken scadetenebesseb deeckesecseacses (3) the words ‘’shall be allotted” in section 205. The deletion of “all in conference is asserted to be an indication that Congress intended to allow discretion in the allotment phase. However. nowhere in the conference report or any legislative history is there a direct statement to that effect. The Administrator relies strongly on a statement by Representative Harsha: | want to point out that the elimination of the word “all” before the word “sums” in section 205 (a) and insertion of the phrase “not to exceed” in section 207 was intended ...10 emphasize the President's fles- ihility to control the rate of spending. 118 CONG. Rec H9122 idaily ed. Oct. 4, 1972) (emphasis mided). The key to understanding the statement. however. comes when Representative Harsha further explicates: Second. | would like to point out that the Admin- istrator of the Environmental Protection Agency must approve plans. specifications. and estimates. This is the pacing item in the expenditures [sic } of funds. id. temphasis added). Th: screening procedure and project approval which Representative Harsha has Wentified as the pacing item to control the rate of expenditures is the obligation phase Kepresentative Harsha clearly specifies that it ts this phase (obligation) of the funding process where he finds the dis- eretion to control the rate of spending. Moreover. Congress- man Harsha continues: “lt is clearly the understanding of the managers that under these circumstances (the application i" review procedure} the Executive can control the rate of espenditures” Id. (emphasis added). The comments of Rep- resentative Harsha make clear that the statement primarily cited as making allotment discretionary actually refers to “obligation.” Nowhere in these comments is there reference to flexibility” in allotment or to allotment as a“ pacing item.” Further. because of the different phases in the Act. control over allotment does not so much affect the rate of spending as it does the amount of spending.’ further indicating that the ref- erence to discretion relates to obligation. A colloquy between former Representative Ford and Representative Harsha further supports the interpretation that discretion was granted only at the obligation phase: As 1 understand the comments of [Representative Harsha}. the inclusion of the words in section 207 in three instances of “not to exceed” indicates that it ts a limitation. More importantly that it is not a mandatory requirement that in | year ending June 30, 1973. there would be $5 billion and the next year ending June W. 1974. $6 billion and a third year ending June W. 1975, $7 billion obligation or expenditure’ Id. at HYD (emphasis added). Representative Harsha responded: 1 de not see how reasonable minds could come to any other conclusion than that the language means we can obligate or expend up to that sum -- anything up to that sem but not to exceed that amount. Id. semphasis added). Vikament relites only to the amount 4 state may obligate. Obligation oy ecu at Vateous times during the year after adounistrative review of spin eons, thereby pacing the rate of cxapenditure. See p.24.29.32 intra 12 it is clear that. if what Representative Harsha says ts accurate. namely that anything up to the maximum sum can be obligated or expended, then discretion at the allotment phase is virtually impossible. That is, if the Administrator exercises any discretionary reduction at the allotment phase. then what Representative Harsha proclaims as possible becomes impossible.” The legislative history is totally devoid of any statement that discretion exists at the allotment phase to withhold funds. In fact. as explained above. the statements advanced by the Administrator as indicating a discretionary allotment do not even refer to the allotment phase. Instead, the legislative history is replete with direct statements referring to discretion at the obligation phase. This pattern of legislative history. tending to place discretion at obligation rather than allotment. is further strengthened by a categorical state- ment in the legislative history by a principal sponsor of the bill which directly applied to sections 205 and 207 and explains their effect: Under the amendments proposed by Congressman William Harsha and others. the authorizations for vbligational authority ave “not to exceed” $18 billion over the next 3 years. Also, “‘all” sums authorized to be obligated need not be committed, though they must be allocated.{ | These two provisions were submitted to give the administration some flexibility concerning the vhligation of construction grant funds. “Allotment necessarily precedes obligation. If allotment ts discretion ary. then the Administrator cannot possibly obligate up to the maximum sum. unless he exercises his discretion to allot the full amount. If allotment is mandatory. then Congressman Harsha’s statement is correct and the Administrator can obligaie up to the full amount. There is ample history supportive of making full amounts available for obligation. Sec footnote 1 und accompanying test mifra The Senate bill had used the term “allocate” rather than allotment MK Rev No 1465, 92d Cong.. 2d Sess. 113 (1972). See New York » Jrain. 494 F.2d 103%, 1043 9. 19¢4D.C. Cir. 1974) 13 118 CONG. REC. S18546 (daily ed. Oct. 17. 1972) (remarks of Senator Muskie) (emphasis added), This siatement by Senator Muskie. Senate sponsor of the Act. in no way con- flicts with the statements of Representatives Harsha and Ford. The statement does. however. provide a critical clari- fication. Rather that merely alluding to where discretion ts vested. Senator Muskie clearly states when discretion ts not vested. The deletion of the word ‘all from section 205 has been given undue weight. The provision has essentially the same meaning with or without “all.” Moreover, this Court has Stated that statutes must be interpreted on “the basis of what Congress has written, not what Congress might have written.” United States v. Great N. Ry. Co., 343 U.S. S62. §75(1952). The act of deleting the word “‘all”” should be accord- ed no particular significance if the meaning of the provision is not affected by the omission. ** All sums” ts equal to sums” albeit less emphatic.” “it is a general principle of English grammar that when there is the absence of a qualifying adjective. the noun t considered a totality. See P. ROBERTS. MODERN GRAMMAR 29 (1968). An illustration of the signifi- cance that Congress apparently gives to the term” all’ 1s found in the legis- lative history of the old Senate Bill, Section 205 of that bill read. all allen a- tions to the states under Section 205 are to be made on the basis of popula- tion” (emphasis added). The commentary by the committee explaining this section reads as follows: “This section provides that sans appropriat do authorized to be obligated for the construction of treatment works under lithe 1. will be allocated among the states on the basis of population alone” (emphasis added). Library of Congress. 4 Legislative History of tu Water Pollution Control Act Amendments of 1972 at 1448 19749), The significance of this passage is the absence of “all” before “sums in the commenturs indicating a tendency in Congress not te use an adjective inthis contest. and probably for ae particular reason -- whether that mhective be “some ll or “the i ee 14 Despite the legislative history cited above. a district court. in dicta. has concluded that the allotment phase was discretionary. Brown v. Ruckelshaus, 364 F. Supp. 258. 268 (C.D. Cal. 1973). But to reach this conclusion the court examined legislative history referring only to dis- cretion at the obligation phase--a proposition not even al issue. While legislative history supports the Administrator’ s position in Brown that not every penny must be spent in any given year, the history does not support the conclusion that allotment is discretionary. Another district court found discretion based on the act of deletion--what the court termed “‘syntactical history.” Campaign Clean Water, Ine, v. Ruchelshaus, 361 F. Supp. 689. 698-99 (ED. Va.). remanded with directions sub nom. Campaign Clean Water, Ine. v. Train, 489 F.2d 492 (4th Cir. 1973). In the presence of what the court felt to be an unclear levislative history subjecting the Act to two interpretations. this “syntactical history” was found to be persuasive. How- ever. no substantiation was offered as to what the “syntactical history” of the deletion was. only ex post facto commentary. If legislative history ts unclear. “syntactical history” is non- existent. Nevertheless. Judge Merhige declares this deletion to be the principal source for concluding that Congress intended the Administrator to exercise some discretion with respect to allotments. The weight of opinion is. however. in disagree- ment with Judge Merhige’s conclusion.” The mere removal of 4 word is subject to many interpretations aad is of itself not sufficient to support a major deviation from the plain meaning and legislative history of a statute. ‘New York +. Fram, 494 F.2d 10850 DC. Cir, 1974); Texas v. Fest. No AATEC AWD. Tes. Oct. 2 1973); Martin-Trigonas. Ruchelshaus. No 72 M440 N D. BL, June 29, 1974), Minnesota» USEPA, No. 4-73 Crs 13341. Minn. June 25. 197%). appeal areucd., Cw No. 73-1446. Sth Cu feb 1%. 1974. Bat we Brown ©. Ruckelshaus. 4 F. Supp. 28K 1C.D. Cal 1974) tabectu 14 In sum. a combination of circumstances indicates the mandatory nature of allotment. First. no legislator directly refers to allotments as discretionary. Those who supported discretion in allotment, if there were any. did not express their opinion:'” and were unable to pass any language explicitly discretionary. Third. one of the principal sponsors. Senator Muskie made a direct statement that the deletion of all’ did not affect the mandatory allotment provision. Fourth, the plain meaning and statutory history support mandatory allotment and discretionary obligation. The total impact of these circumstances clearly shows allotment to be mandatory. Both the legislative history. which clearly supports the mandatory nature of allotment. and the plain meaning of the words of the allotment provision admit of 10 reasonable interpretation other than a mandatory allotment provision. 3. STATEMENTS IN LEGISLATIVE HISTORY REFERRING TO AUTHORITY TO “IMPOUND” CONFER NO AUTHORITY TO REDUCE ALLOT- MENTS. The Administrator contends that certain excerpts from the legislative history indicate that the power to impound authorized funds was conferrred upon the Executive. Briet for Petitioner at 14 ef seq. The contention is unsupported. first because these cited statements refer to discretion only at the post-allotment phase (obligation) and, second, because any reference to Office of Management and Budget s authority to impound is inapplicable in the instant case. The Administrator contends that the quoted language confers a general power to impound independent of the Act. Brief for Petitioner at 10, 44. The primary thrust of this argument depends upon Representative Harsha’s statement “The silence of sponsors of amendments is pregnant » ith signifi Ccatecc NI Ki 7 j rust A Veu Puckers. | ocal Tt) 377 { ee. oe 1\iyS) PRT ree ee Tee Boer aE yr tt 16 comparing impoundment under the Highway Trust Fund with impoundment under the Act. Brief for Petitioner at 17. Congressman Harsha stated: Surely. if the administration can impound monies from the highway trust fund which does not have the flex- ibility of the language of the water pollution contro! bill. it can just as rightly control expenditures from the contract authority produced in this legislation by that sume means. 118 CONG. REC. H9122 (daily ed. Oct. 4. 1972). Although the statement indicates a conferring of control over spending power, the only power exercised by the Executive in the Highway Trust Fund to which Representative Harsha refers occurs at the obligation phase with “contract controls.”’ See State Highway Comm'n v. Volpe, 479 F.2d 1099, 1103-04 (8th Cir. 1973). In fact. the Executive and the Eighth Circuit have recognized that the Highway Trust Fund's “allotment” process is ministerial. See p.29-30 infra. The Administrator also infers a general power to impound from other statements referring to the Office of Management and Budget.'' Even if the OMB has adequate impoundment power under the Anti-Deficiency Act. the OMB has failed to utilize any option which might exist. In OMB's report of February 19, 1974. pursuant to the Federal Impoundment and Information Act. 31 US.C_A. §58le-1 (Supp. 1974). it omitted the withheld allotments from its list of impoundments. 39 Fed. Reg. 7707. 7708 (1974). Since none of the present withholding was accomplished through Serutor Nelson stated Oniv if the Presidents Office of Management and Budget or the Congress specifically directed otherwise would the money not be avulable at the levels in the legislatumn, according to my under standing 1S CONG REC SIORNR daily ed. Oct. 4. 1972) 17 any OMB authority. the Administrator may not rely upon powers vested in the President through the OMB. Con- sequently. any references to OMB “impoundment” are inapplicable since that power, whether or not it exists. has not been exercised. Further. even if the OMB had utilized its power to reserve under the Anti-Deficiency Act. 31 U.S.C $665 fc) (1970), that action would have exceeded their authority. Reserves cannot contravene the intent of the Congress. In a report to the Senate Appropriations Committee recommending reserves. the Bureau of the Budget and the Comptroller General stated that there was a need “for machinery to conserve appropriations which are in excess of actual requirements.”"'* This emphasizes that the purpose was not to allow the reserving of required funds. In another report. prepared by the House Appropriations Committee to accompany the 1950 amendments to the Anti- Deficiency Act. the following discussion stemmed from consideration of President Truman's impoundment of Air Force funds:'* It is perfectly justifiable and proper for all possible economies to be effected and savings to be made. but there is no warrant or justification for the thwarting of « major policy of Congress by the impounding of funds. ven more persuasive ts the Bureau of the Budget Examiners Handbook written in 1952. shortly after the 1950 amendments to the Anti-Deficiency Act. which stated: Quoted m leint Heurin on S474 Betore the Ad He Sabeomm on leipoundment of F ands of the Senate Comm, on Governme (iperutions an J the Sub omm. on Separation of Powers of the Senut Comm. on the Judmwiat id Cong., Ist Sess. 107 11974) (emphists vided HK. Ree No 1797, Bist Cong. 2d Seas, 311 01041) - a ee RN ee a A _ - Reserves must not be used to nullify the intent of Congress with respect to specific projects or level of programs.”'* The decision of the Eighth Circuit in State Highways Comm'n v. Volpe, 479 F.2d 1099, 1118 (1973), reaffirmed these interpretations and considered the Anti- Deficiency Act as no justification for “violating the purposes and objectives of the particular appropriation statute.” A withholding of the magnitude accomplished by the Administrator in the instant case. if done by reserving, would be an encroachment on congressional intent and would be outside the purview of the Anti-Deficiency Act. However. as previously stated. this question is not directly before the Court since the refusal to allot was by the Administrator and not the OMB. Consequently, all references to legislative history which are argued as granting impoundment authority regarding allotment cither refer to another phase of the Act (obligation) or to unexercised OMB reserve authority, B EXPRESS GOALS AND OVERALL FUNDING STRUCTURE OF THE ACT DEMONSTRATE THAT ALLOTMENT OF AUTHORIZED SUMS IS MANDA TORY. (The Act] has received more thorough consideration and has engendered more productive discussion than any other in which | have participated during my service in the Senate. 118 CONG REC. SIGKRI idaily et. Oct, 4, 1972) (remarks of Senator Cooper). Since a determination of the manditoriness of Te SS Boma Or Tat Boooet Paaminees Mascon 119%) squatted by J Witham. The linpeunding of Lands © the Barran of Oe Biadert VS onted in Join’ Hearinwes ce 847) Betove he Ad Hew Sah conn vn bapoundment of bands of the Senate Comm. vn Cranprnmen Operations and the Sabeommn. on Scperatinn of Power: of the Seteate Com on the Juduiare, 9 Com jet Seon B46. BO CITED iv allotment affects the entire Act. it is necessary to caamine allotment in the contest of the other relevant provisions of the Act. The Act. as Senator Cooper points out above. «as carefully constructed. However, if allotment is conudered discretionary. this well-planned Act reaches illogical rewults Congressional enactments “should never be construed a» establishing statutory schemes which are Mogical, unjest or capricious.” Lee Fook Chucy . lmmigration & Natural cation Serv, 499 F.2d 244, 249 HH Cor, 1970) The logic and goals of the entire Act are essential in roter: preting the allotment provision. A» the Court obernved in Richards v. United States, M49 U.S. 1. Ut 1962) We believe it fundamental that 4 section of » statue sthowk! not be read in isolation from the contest of the whole Sct, and that in fulfilling our responsibility im imterpreting legislation. "we must not be guuded by a ingle seniome or member of a sentence. but | howl’) lovk (0 the proey sions of the » hole law . and to te otyest and pola). (flout notes omition) Statutory construction and the legislative histery of the Sot cannet oxi independently of in 2 ba uum We are not only dealing with the language of the -stute hast we must lack a+ well to the logan of Congress ond the breed nathonal polices whch wae cr ulenoed hy ae chat men! Willer «. Amacment Laterprees, Ine. WA EF Ud MD Ot Mth Cir. nm The Eighth Circuit reaffirmed this principle wo State Migt wav Commas. Volpe, cting Richards and Lard Camptell » statement of over a century age that lilt to the duty of the Courts of luostice te try to pet at the ical intention of the | cgedoture hy carefully atiend img te the «tude wap of the aatete to te po wetirecd Liverpeel Boroweh Bank «+ Terms, & bag Bem Cis. ou a o cee eh Wiig Bape WO. ce qed ae 2% OF O00? eh ee PPR the comet © conptianen Hives coe eet eetaN AM gawd AM Re ge ma eH Se Ce ee 1 Gee ed Sem Cae Ot 18 RE ee 8S OH re & 6 HrtE Wt See Fe Rls LeHeR OHeReR He Oe eet Hew (Rite OF Othe we OP et Phe tele of Hie Gon et eee et DO ee De Se ee al Pe re ee Om ee oe, ee SO, eC co pectoris ke eterna Re PRE OO a ee SCO eee tc SO Ce a a i. oe Oe See SN eneennn EE ooNARURURRHHERIE OME HHDEAE: Ge meio ete bee PEMOOHRE: HE ht pile 1 Cate Bie 08 ada ai Gen FP AM) Ce em ee CO Se eC ee CO eure | FAO ore Mo MT Kat al Ce A OD) Ante ee ee Ce ee et kr eC a ee OO Bee» whens Mee we ded! fide de ff lhe pe (eter Ste “ Ai ate fe 6 Ae ie PP ghee Fy ie Mie fe gel oF te Peete wens Ge ote pe eee of Me Bee enh tee tie Ce ee ee a ee SS ee ee Ce Co ee ee Neen De a et eg a: a we Veet Gee ae on. Po Oe ON OO etna it Ot tina Te oP re. getline — Hee Ge OF) ae eee OY em Se ee °° se © © Ghee + Oo at? Gwe © #5 ale ne ¢ & One > a Geom ia «& ~—_ yr ee) oy ee ee eee ee ae ae ae #°. 000 : are @: ‘ ® « ae wend ones ( oe en ate 9 Ree ee mee hee Gets © terrae we Ee ee Me ee Cee Ul Re ete ae rarnins Cocm Me me tee & Gets ier OM & 6 eee Hee ©. Cee &@ SOP eee @ rete PN aeaarm® & @u« tm ae aa «hoe ” ae appropriations committees below the authorized level -- a common occurrence.'’ Thus. contract authority was utilized tomsure that full amounts authorized would be made available for obligation.'* a purpose which would be frustrated by per- missive allotments. Provisions of a statute should not be interpreted to frustrate ihe goals of Congress regarding funding levels. As expressed by the lower court in the instant case: We find that it was Congress’ intention that the full $18 billion be spent to control water pollution... . {T}he legislative history ...manifests an intent to create a pro- cedure which would insure that the total authorized funds would be made available to states. It is this goal which must guide us in interpreting the funding mechanism. for if discretion in allotment would make the achievement of this goal more difficult. it must be assumed that Congress intended no such authorization. New York v. Train, 494 F.2d 1033, 1042(.D.C. Cir. 1974). The Act clearly contemplaies full expenditure of funds to imple- ment the goal of cleaning the nation’s waters.'” '? Under normal budgetary procedures, appropriations are often made at a level lower than authorizations. Sce ADVISORY COMM'N ON INTERGOVERNMENTAL RELATIONS. THE GAP BETWEEN Fe DERAL AID AUTHORIZATIONS AND APPROPRIATIONS. FISCAL YEARS 1966-1970 (1970). "(LJjet us put up the Federal share ia a way. with language and an understanding. that makes it clear we are not backing off."" 117 CONG. RE« $17446 (daily ed. Nov. 2. 1971) (remarks of Senator Muskie). If the Administrator's argument were to be accepted. he could con- ceivably “control” allotment to $0; it is worth considering the fate of this program at the Administrator's present rate cf allotment. Senator Muskie estimated that even with full allotment, it would take seven years to expend the $18 billion. 118 CONG. REC. S18847 (caily ed. Oct. 17. 1972). At the Administrator's present 457 rate of allotment. the optimum time for expenditure of the full $18 billion is approximately 18 years. 3 p PERMISSIVE OR MULTIPLE ALL OPMENTS WOULD FRUSTRATE THE INTENT OF THE ACT TO ENCOURAGE LONG RANGE PLANNING The Administrator asserts authority to allot funds for any given year at any time and that “there ts no practical diffe, ence in result between exercising such control at the allot- ment or at the obligation stage.” Brief for Petitioner at 23. Neither the contention for multiple allotments nor the asser- tion that there is no practical difference is supportable. Nowhere in the Act is there provision for multiple allot- ments or disposition of funds authorized but not allotted. On the other hand, section 205 (b) (1) of the Act deals extensively with the reallotment of funds allotted but not obligated. The inference is that incomplete obligation was anticipated by Congress. but incomplete allotment was not. The Administrator has adopted the position that funds not allotted will be available for obligation indefinitely. Brief for Petitioner at 25 et seg. However. there is no support for such a contention in the Act. and the idea that the Administrator may absolutely control release of unallotted funds forever by multiple allotments is plainly unreasonable. One of the primary problems with the Federal Water Pollu- tion Control Act of 1956 was that its yearly appropriation scheme caused uncertainty because of its failure to give notice to the states of future federal commitments. The appropriation method was deemed neither practical nor economical. 117 CONG. REC. $17445-52 (daily ed. Nov. 2. 1971). Ae »4 Contract authority?" the new method incorporated in sec- tion 203 of the Water Pollution Control Act Amendments of 1972. was designed to allow flexibility in the planning stage and give long range assurances to the states and local agencies that the funds were available in the amount specified by Congress. Representative Harsha stressed that: It ts essential that the States, the interstate agencies and the cities have both the ability for and a basis for long- range planning, construction scheduling and financing Waste treatment plants .... 118 CONG, REC. H2727 (daily ed. March 29, 1972); see 117 CONG. REC. SI7451 (daily ed. Nov. 2. 197)) (remarks of Senator Muskie). The District of Columbia Circuit Court stated simply, [t]he Act was passed to insure that ultimate grantees could rely in advance on the amounts available.”” New York v. Train, 494 F.2d at 1036-37. In Texas v. Fri, No. A-73-CA-38. Slip Op. at 5 (W.D. Tex.. Oct. 2. 1973), the district court saw the same issue to be one of logic: The feeling was that without unequivocal federal financial commitment state and local governments would have difficulty entering into iong term contrects and financing long term bonds. /1 is illogical to think that Congress would inject the same uncertainty back into the system it had sought to avoid with the allotment procedure by giv- ing the Administrator discretion to choose the amount to be made available to the state and local governments. (emphasis added). “"With a “contract authority ~ method of funding. Congress authorizes an amount to be committed by the Administrator according to conditions and limitations s‘«cified by law. The actual appropriation of funds by Congress is pro forma ond takes place after obligation of funds by the Administrator. Se” 117 Cos G. Rec. $17448-S2 (daily ed. Nov. 2. 1971): U. S. Orrick OF MAN/SGEMENT & BUDGET. CIRCULAR NO. A-34, INSTRUCTIONS ON BUr GET EXECUTION §21.1, at 6 (1971). < Exercise of discretion at the allotment phase clearly pre- cludes effective long range planning by states and localities -- a primary goal of the Act. Exercise at the obligation phase would not hinder planning but would control the rate of expenditure to qualified applicants. Conseguently. the Administrator’ s contention that there is no practical difference in exercise of discretion at obligation or allocment ts fallacious. Exercise of discretion through multipie allotment frustrates one of the primary goals of the Act -- long range planning by states. Moreover. the Administrator argues for discretion at both the allotment and obligation phases. Brief for Petitioner at 23. This would result in almost total uncertainty about the level of funding. and render long range planning impossible. 3. THE INTERNAL LOGIC OF THE ACT READ WITH THE REALLOTMENT PROVISION, SECTION 205 (b). INDICATES ALLOTMENT TO BE MANDATORY. Under section 205 (b), budget authority allotted but unobli- gated after an initial thirty-month period is redistributed by re- allotments to the states and continues to be available for obliga- tion. Reallotment of unobligated funds thus permits a constant level of funding to continue to be available to the states in order to facilitate the accomplishment of the goals of the Act. If un- allotted. however. the funds are never available for reallot- ment or obligation and therefore are permanently lost to the states.2! See New York v. Train, 494 F.2d at 1049. 21 The Act requires the Administrator to make allotments by a fixed date under section 205 (a). Once properly allotted. section 205 (b) (1) requires: Any sums allotted to a State .. .shall be available for obligation . . .in such State for a period of one year after the close of the fiscal year for which such sums are authorized. Thus. since subsection (b) (1) is the exclusive provision for obligational availability and since it specifies a definite obligational period, see 31 U.S.C. §701 (b), anv amounts unallotted by the statutory date are never available for obligation and consequently lapse. See 31 U.S.C. §701 (a) (2). Further, these same unallotted sums can not be reallotted since only those amounts allotted by the statutory date may be reallotted under section 205 (b) (1). “ The reallotment procedure. read together with a mandatory allotment provision, supports the policy of the Act to encour- age planning. It is well established that separate provisions of a single act should be interpreted so as to reach the ** ‘most harmonious, comprehensive meaning possible’ in light of the legislative policy and purpose.” Weinberger vo Hynson, Westcott & Duaning, Inc., 412 U.S. 609, 631-32 (1973). Find- ing allotment permissive would clearly frustrate the overall purpose of the Act. 4. SECTION 206 (f) (1). WHICH PROVIDES FOR AD- VANCE OBLIGATION OF FUNDS AUTHORIZED FOR FUTURE ALLOTMENTS, IS MEANINGLESS UN- LESS ALLOTMENT IS MANDATORY. Section 206 (f) (1) allows the Administrator to obligate funds in advance for a state’s particular project. even if the funds allotted for that fiscal year have been fully obligated. This is possible only if the authorization for the subsequent fiscal year will ensure payment of the obligation incurred. If a state may not be sure of the level of future allotments, as would be the situation with permissive allotment, this provi- sion is meaningless. The proposition is well established that a statute must be construed, if at ali possible, to give effect to all its pro- visions. United States v. Menasche, 348 U.S. $28, 338-539 (1955). As the D.C. Circuit has observed: Section 206 (f) (1) would have scant operative effect if the ““state’s expected allotment’’ could not be known because the Administrator had discretion to allot only a portion of such authorization. This is further evidence of a legislative purpose to make allotment mandatory. New York v. Train, 494 F.2d at 1049-50. Mandatory allotment allows the Administrator to use his discretion as to individual projects and to exercise control over the obligation and rate of expenditure of funds without jeop- ardizing the level of tunding available. The reallotment pro- vision was provided by Congress to allow the Administrator to use discretion at the obligation phase without raising the danger that states would Lave insufficient time to obligate deferred projects. Cf. State Highway Commien v. Volpe, 479 F.2d 1099, 1114-15 (1973). The Administrator argues that funds currently unallotted will not be lost to the states because section 205 is not a once- a-vear action. Section 205 states: the allotment for fiscal year 1973 shall be made not later than .... (emphasis added). This provisior obviously contemplates only an annual allot- ment. A system allowing more than one allotment would wreak havoc with state planning. States must plan to accompiish the maximum within the amounts allotted. The January allot- ment for a fiscal year and the carryover to the next fiscal year gives the states time to plan how best to attain their goals. These proposed mid-way allotments do not give the states adequate notice or time to plan the efficient use of funds. In many cases, it would be impossible for a state to expand a pro- gram after it is started. Plans or specifications would have to be redrawn, and the program would have to be resubmitted to the Administrator. If approved, bids would have to be relet. This system is not only inefficient but clearly contrary to the intent of Congress. The District of Columbia Circuit Court reached the same conclusion and observed, “the Act nowhere mentions any type of later augmentation procedure’’ for additional allot- ments. New York v. Train, 494 F.2d at 1049. Therefore. the loss of funds resulting from the reallotment procedure when allotment is read to be permissive cannot be cured by secondary allotments not permitted by the Act. iris ay Fr van aig? name tons toh ARR MBER REA SRL ROR CA RE BETS 5 it ct alae SI & paAeatecey Bihan 2s s THE OBLIGATION PROVISION AS WRITTEN INDE CATES THAT THE OBLIGATIONAL PHASE RATHER THAN THE ALLOTMENT PHASE IS’ DISCRE- PIONARY. Section 203 sets the general scheme for contract authority and requires applicants to submit plans and specifications after allotment. Approval is based upon satisfying the grant condi- tions specified in section 204. Only if discretion Is present al the obligation phase rather than at the allotment phase can the Administrator intelligently exercise his discretion. At this point, after allotment and the submission of plans, the Administrator has at his disposal the information necessary to evaluate specific projects and the needs of states -- informa- tion not available at the allotment phase. Therefore, the Administrator can better decide upon reductions or delays which least damage the goals of the Act. Discretionary allotment would hamper effective operation of the obligation phase by precluding the exercise of informed discretion. If a statute is susceptible to either of two opposed interpretations (in the instant case either mandatory or dis- cretionary allotments), the statute must be read **in the manner which effectuates rather than frustrates the major purpose of the legislative draftsmen.”’ Shapiro v. United States, 335 U.S.1, 31(1948). Consequently, the allotment provision should be read as mandatory to promote the purpose of advance plan- ning and informed exercise of discretion. C. ALLOTMENT IS A BUDGETARY MECHANISM WHICH IS BOTH GENERALLY MANDATORY AND SPECIFICALLY MANDATORY IN THE CONTEXT OF THE ACT. Petitioner's argument that allotment is discretionary fails to take cognizance of the characteristics of allotment as a budget- ary tool. Allotment in the Act is a technical process in the implementation of contract authority. The amount each state %) is allotted is determined by the “ratio that the estimated cost of constructing all needed publicly owned treatment works in each State bears to the estimated cost of construction of all needed publicly owned treatment works in all of the States.”’ Section 208 of Pub. L.. No. 92-500, 86 Stat. 816. See also Shinn. The Federal Grant Program to Aid Construction of Municipal Sewage Treatment Plants: A Survey of the 1972 FWPCA Amendments, 48 TUL L. REV. 85. 88 (1973). The Adminis- trator then determines, through the obligation phase. the extent of the actual needs of the states. Allotment provides a ceiling within which the Administrator may exercise inform- ed discretion by evaluating proposals from the states. Allotment has been found ministerial in other spending enactments. In Udall v. Wisconsin, an action involving alloca- tion of wildlife restoration funds to states. the court found the Secretary of the Interior was “‘given no discretion in the initial apportionment.’ 306 F.2d 790, 793 (D.C. Cir. 1962). cert. denied, 371 U.S. 969 (1963), Apportionment in Udall is the same as allotment in the instant case. The Udall court also recognized that there was discretion later in the funding process: “‘approval or disapproval of a conservation project submitted by a state ...involves an administrative judgement ..+. 306 F.2d at 793 n.15.The same discretionary role is play- ed by obligation in the instant case. Also indicative of the nature of allotment in the instant case is the practice of “apportionment” in the Federal- Aid High- way Act, 23 U.S.C. §§ 101 et seg. (1970). The Conference Report accompanying the Water Poliution Control Act specifi- cally refers, questions on the interpretation of the mechanics of contract authority funding to the Federal- Aid Highway Act. H.R. REP. NO. 1465, 92d Cong., 2d Sess. 111 (1972). Further. the Administrator, in his brief. recognized congressional Ww) references to the procedures of the Highway Act. Within the meaning of the Highway Act, apportionment ts a ministe- rial function -- the Secretary of Transportation has no discre- tion. “*Apportionment’” by the Secretary among the states according to a set formula is exactly the same as allotment. As the Eighth Circuit Court of Appeals observed: [The Secretary is required to apportion among the several states certain sums authorized to be appropriated for expenditure. State Highway Comm'n v. Volpe, 479 F.2d 1099, 1107 (8th Cir. 1973). As authority for the sbove statement, the Eighth Circuit cited former Federal Highway Administrator F.C. Turner, who observed that: There is absolutely no discretion of any kind in our office with respect to how much any State gets in any of these categories of funds [pursuant to the formula}. The appor- tionment is specified in the law and we distribute it right to the dollar. Hearings on Executive lmpoundment of Appropriated Funds Before the Subcomm. on Separation of Powers of the Senate Comm, on the Judiciary, 92d Cong., Ist Sess. 80 (1971), as quoted in State Highway Comm'n v. Volpe, 479 F.2d at 1107 n.8. The District of Columbia Circuit Court directly con- curred in the conclusion of the Volpe court that ‘‘allotment”’ under the Highway Act is mandatory. ‘*‘{]]mpoundment™ under the Federal- Aid Highways Act is achieved only by the limiting of contracts awarded (i.e. obligation). There is no possibility under that Act to re- duce at the ‘‘allotment”’ stage. New York v. Train, 494 F.2d at 1046-47 (emphasis added). The conferees’ reference to the mechanics of the Highway Act is strong indication that they expected allotment to be manda- tory. 3] > At least four federal district courts and the District of Columbia Circuit Court of Appeals have held that allotment in the Water Pollution Control Act ts a non-discretionary, administrative procedure. ** “2 Inthe lower federal court which tried the rstant case, the district court held: {t}he language of the pertinent sections of the Act..read in the light of their legislative history, clearly indicates the intent of Congress to require the Administrator to allot, at the appropriate times, the full sums authorized to be appropriated by §207. 388 F. Supp. at679¢D. D.C. 1973). This opinion was affirmed by the District of Columbia Circuit: {Blelieving as we do that there is a clear distinction under the Act between allotment and obligation and that there can be no discretion as to the former, we find it unnecessary to consider whether an allotment could be “augmented” in a later fiscal year; full allotment must be made in each fiscal year. New York v. Train, 494 F.2d at 1049. In Texas v. Fri, the district court found: in light of the high priority placed by Congress on the Act, the language of the Act, and the legislative history of the Act, this Court concludes thatthe Administrator has a mandatory duty to allot to the Plaintiffs the sums authorized by Congress in §207 of the Act in accordance with §205 (a). No. A-73-C A-38, Slip Op. at 5-6(W.D. Tex.. Oct. 2, 1973), appeal argued, No. 73-3965, Sth Cir., April 29, 1974. In Minnesota v. USEPA, it was held: In failing to allot all of the money authorized in this matter, the Ad- ministrator is acting in express violation of the purposes of the Act itself as well as in violation of the purposes of the Act as set forth by Congress. No. 4-73 Civ. 133, Slip Op. at 13-14 (D. Minn., June 25, 1973). appeal argued, Civil No. 73-1446, 8th Cir., Feb. 13, 1974. Also, in Florida v. Train, the district court stated: In view of the legislative history behind the Act and the goals sought to be achieved by the Act it js illogical to believe that Congress accorded the Administrator discretion at the allotment stage. No. 73-156, Slip Op. at 6(N.D. Fla., Feb. 25, 1974), appeal argued, Civil No. 73-3965, Sth Cir., Apr. 29, 1974, Re eeetmay ar POLI POWER RAE A a RTT IE ER Meg, AE POLI HRS: BREMEN tu DEERME pr em Calta a SORTS SINE EES a {% As these causes have recognized, the function of allotment is merely to parcel out the authorization and is not tantamount to expenditure by the Federal Government. The general utiliza- tion of allotment as a ministerial procedure to divide funds among the states rebuts the Administrator's contention that allotment is discretionary. D. EVENTF DISCRETION IS FOUND. THE ADMINISTRA.- TOR’S ACTION IN WITHHOLDING FIFTY-FIVE PERCENT OF AUTHORIZED FUNDS WAS AN ABUSE OF DISCRETION IN LIGHT OF THE EXPRESSED GOALS OF THE ACT. The district court in Campaign Clean Water, Inc. v. Ruckel- shaus, 361 F. Supp. 689 (E.D. Va. 1973). determined that the allotment phase of the Act confers discretion on the Adminis- trator. On appeal to the Fourth Circuit, neither party sought review of the district court's finding of discretionary allotment. In fact, the Fourth Circuit made emphatic declarations that the issue of whether allotments were mandatory was not before them. Campaign Clean Water, Inc. v. Train, 489 F.2d 492, 497 (4th Cir. 1973). Most courts have found allotment manda- tory.** However, even if the Court held allotment discretion- ary, the actions of the Administrator constitute a per se abuse of discretion and are reviewable by the Court. If allotment is held to be non-mandatory, then the issue is whether the Administrator's decision to allot only 45% of the authorized amount constituted a per se abuse of discretion. The standards as contained within the Act show that 45% allotment is aper se abuse of any arguable discretion since the goals of the Act cannot be accomplished at this rate of allot- ment. The purpose of establishing contract authority as the method of funding was to facilitate state planning. A cut of 55% in the amount of the funds allotted inhibits the ability of the *8See id. States to plan and thus frustrates the intent of Congress. As a result of the Administrator's actions the states are unable to make long range plans, with the result that the cities are unable to determine the amount of funding they will receive from the state. See p. 24-25 supra. As previously stated, the amount allotted was deemed by Congress to be the “‘minimum amount needed” to attain the goals of the Act. See LIS CONG. REC. S16870-71 (daily ed. Oct. 4. 1972) (remarks of Senator Muskie). Therefore. a cut of more than half the funds, before the Administrator has eval- uated any state plans or surveys. cannot be made without com- pletely frustrating the goals of the Act: and frustrating the goals of the Act is not a power within the discretion of any admints- trator.** In order for the goals of the program to be a. complish- ed by 1985 it is essential that the states know how much money is available for which they can attempt to qualify. In reviewing the Administrator's actions the Court must‘ consider *“‘whether the decision was based on a consideration of the relevant factors ... °° Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971). On November 22, 1972. President Nixcn announced that the amounts allocated under the Act would be considerably reduced from the amounts authorized. This announcement was made prior to any admin- istrative examination of proposed state plans or surveys and therefore apparently was not based on relevant water quality factors. In fact, the expressed justification was not based on water quality factors: These amounts will provide for improving water quality and yet give proper recognition to competing national priorities for our tax dollars, the resources now available *4*E ven if discretion is available. allotting 48° of the authorization is a per se abuse of discretion since the 1973 °° Needs Survey” indicates that the states presently need at least 60 billion dollars to implement their plans USEPA. Report to the Congress: Costs of Construction of Publicly-Ow ned Wastewater Treatment Works A-2, B-1 (1973). for this program and the projected condition of the Fed- eral treasury under existing [ax laws and the statutory limit on the national debt. Letter from President Nixon to William D. Ruckleshaus, EPA Administrator, November 22. 1972. reproduced in Hearings on Federal Budget for 1974 Before the House Comm, on Appropriations. 93d Cong.. Ist Sess. 194-95 (1973); see Brief for Petitioner at 44. Further, the Administrator directly states in his brief that he may exercise allotment discretion “in the interest of overall government fiscal policies that are not re- lated to the particular program involved.” Brief for Petitioner at 10. Fiscal considerations are the same rationale used by Presi- dent Nixon in vetoing the water bill. While an acceptable rea- son for veto. fiscal considerations are unrelated to the imple- mentation of the Act itself. Such extrinsic considerations were attacked in State Highway Comm'n v. Volpe, 479 F.2d 1009, 1114-15 (8th Cir. 1973): We find nothing within these provisions of the { High- way] Act which explicitly or impliedly allows the Secre- tary to withhold approval . . .for reasons remote and un- related to the Act. When the provisions of the Federal-Aid Highway Act are considered as a whole. it is apparent that the Secretary does not have the authority to withhold funds for ants inflationary purposes. The statute in the instant case does not contain provisions for withholding for the purpose of controlling inflation. The court in State Highway Commn ¥ Volpe, 479 F.2d at 1114, stated that: It is impossible to find from these specific grants of authority discretion in the Secretary to withhold approval on projects Congress has specifically directed because of a system of priorities the Executive chooses to impose on all expenditures. re - 7 ET er em — — 6 It is clear that the decision not to allot 55° of the funds authorized is an abuse of discretion, since it cannot be shown that the President's decision was based on a consideration of factors relevant to implementation of the program. In sum. the withholding in the instant case would be a per se abuse of any available discretion for two reasons. kirst. the 587 withhold- ing totally frustrates the purposes of the program and secondly the reasons for impounding were irrelevant considerations. Il. REFUSAL TO ALLOT FIFTY-FIVE PERCENT OF THE AUTHORIZED FUNDS IS OUTSIDE THE CON- STITUTIONAL AUTHORITY OF THE EXECUTIVE BRANCH. A finding on consiitutional authority is not imperative to render a decision in the instant case since an order could be issued to the Administrator to follow mandatory provisions of the Act and, given compliance. there would be no necessity to hold on a constitutional basis.*” However. impoundment 4 a pervasive issue which has given rise to extensive litigation. Further. the President** as well as his spokesmen*’ have directly asserted the constitutional authority to impound. An opinion from the Court on the constitutional framework for impoundment would therefore prove valuable as a guideline to lower courts. However. it should be noted that the newly enacted Budget and Impoundment Control Act of 1974 may have a profound effect on the impoundment issue and asser- tions of constitutional authority .** However. the Administrator does allude to the constitutional author- ity of the President to control expenditures. Brief for Petitioner at 12 See none Winfra. 24S "See note 71 infra. ” A. THE “FAITHFULLY EXECUTE” CLAUSE OF THE CONSTITUTION DOES NOT ACCORD DISCRETION TO REFUSE TO IMPLEMENT CONGRESSIONAL ENACTMENTS. The Executive argues that the “faithfully execute’ clause confers the right to selectively enforce or **harmonize™ alleg- edly conflicting statutes involving federal spending. The Administrator states: {the President) has the responsibility to evaluate the com- peting needs of this program and other claims on the limit- ed total federal financial resources from which all expend- itures are made. Brief for Petitioner at 12. This argument implicitly interprets “faithfully execute” as a grant of discretion and authority. In fact. the faithfully execute clause represents a duty to perform rather than a grant of discretion. The Executive must attempt to execute the laws in good faith -- not circumvent the intent of Congress. Conflict purportedly results when Congress appropriates more funds than are allowed to be spent under limited revenues and a debt limit. However. this conflict, when and if it exists. need not be resolved by unilateral executive impoundment. Even assuming arguendo that such a conflict was presented in this case, Congress has specified procedures for the Exec- utive to follow in such an event. In the Budget and Account- ing Act of 1921, section 202, 31 U.S.C. $13 (a) (1970), the Con- gress provided that if estimated revenues for the fiscal year plus estimated Treasury surplus carried over into that year are less than projected expenditures. then “‘the President in the Budget shall make recommendations to Congress for new taxes. loans, or other appropriate action to meet the estimated deficiency."’ (emphasis added). The legislative history of this section clearly indicates that the word “shall’” was inserted to mandate the Executive to return to the Congress and not to - take unilateral action. Significantly. in the precursor of this section the language was permissive and not mandatory.2" Notably, the Executive has often requested Congress to increase the debt ceiling to meet excess expenditures. In fact, from March 15, 1972 to date, Congress has adjusted the ceiling five times.*” These legislative responses indicate Congress generally favers increased spending over maintenance of the existing public debt and does not wish substantive programs to be sacrificed to maintain that ceiling. See Note. /mpound- ment of Funds 86 HARV. L. REV. 1505, 1522 (1973). Further, as a temporary expedient. the Executive could draw upon the Treasury's cash reserve of $6 billion and margin for contingencies of $3 billion to avoid exceeding the debt limit. Congress has acknowledged that this $9 billion could be drawn upon to pay obligations without extending the debt limit. S. REP. No. 1292. 92d Cong.. 2d Sess. 5-6 (1972): see S. REP. NO. 249. 93d Cong.. ist Sess. 10(1973). Therefore. before there is even a remote possibility of a conflict with the debt ceiling. the Execu- tive could draw upon the $9 billion cushion for a considerable *“The predecessor to 31 U.S.C.§13 (a). the “Smith Amendment.”* 35 Stat. 1027. March 4. 1909, read as follows: [To |the endthat [the President | muy ... advise the Congress how in his judgment the estimated appropriations could with least injury to the public service be reduced so as to bring the appropriations with- in the estimated revenues. or. if such reduction be not in his judgment practicable without undue injury to the public service. that he may recommend to Congress such loans or new taxes as may be necessary to cover the deficiency. (emphasis added). The essence of the “Smith Amendment” was later incorporated into the Budget and Accounting Act of 1921. 31 U.S.C. $13. The principal difference between the original language and the amended language ts that “*may recom- mend” was changed to “shall recommend.”’ * Pub. L. No. 93-173( Dec. 1. 1973). 87 Stat. 691; Pub. L. No. 93-53 (July 1. 1973). 87 Stat. 134: Pub. L. No. 92-599( Oct. 27. 1972}. 86 Stat. 1324: Pub. 1. No. 92-336 (July 1. 1972). 86 Stat. 406: Pub. L. No. 92-550 (March 15, 1972). 86 Stat. 63. 31 U.S.C.A. §757 (b). note (Supp. 1974) Ae IG Oy RNB PR We aks PY. aealeae Ai AES EE SB BEER BER EE BS SE) II alee ay 7 4 en ee o> PhG Se Via Bae EAA. BLS Dee Ais Dry 38 period of time without first having to return to Congress with new recommendations.*' Significantly, the statutory procedure required by 31 U.S.C. §13 (a) and the other alternative modes of solution to the alleg- ed debt ceiling conflict present a strikingly similar parallel to the situation facing President Truman during the **Steel Sei- zure Crisis.” The Court in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952), struck down the Pres- ident’s attempted seizure of the steel mills, holding that the seizure could not be justified under his constitutional powers. In 1947, Congress. in rejecting an amendment granting power to seize private industries in emergencies,** expressed its view that it would prefer to deal with such problems itself on an ad hoc basis pursuant to presidential recommendations. 343 U.S. at 599-600 (Frankfurter, J.. concurring); sce 93 CONG. REC. 3637-45 (1947). +'In some circumstances the Government might even be able to extend payments of contracts by afew weeks, so that outlays would occur inthe next fiscal year. Note. Impoundment of Funds, 86 HARV. L. Rev. 1505, 1$22 (1973). In fact, this Administration has on one occasion delayed payment of general revenue sharing disbursements so as to be accounted for in the succeeding fiscal year. THE BUDGET OF THe UNITED STATES GOVERNMENT. 1974 -- APPENDIX 764 (1973); see Pub. L. No. 92-512, $102, 86 Stat. 919, 31 U.S.C.A. §1221 (Supp. 1974). *2Notably. the prior congressional rejection of the power exercised by President Truman is directly analogous to the case at bar. In recent action on the public debt. Congress increased the borrowing power of the Government while rejecting a limit on fiscal 1973 expenditures. Pub. L. No, 92-599 (Oct. 27, 1972), §201. 86 Stat. 1324, reprinted in 1972 U. S. Cope CONG. & ADM News 1542. Congress specifically voted on and rejected two amendments which would have given the Executive the discretionary power to impound appropriated funds. 118 CONG. REC. H10282-84 (daily ed. Oct. 18, 1972): id. at H10224-34, $18506, SI8SO8, S18S10, S$18512-30 (daily ed. Oct. .7, 1972): id. at H9363-401 (daily ed. Oct. 10, 1972). Compare H. R. Rep. No. io14, 92d Cong.. 2d Sess. 3-4 (1972), reprinted in 1972 U. S. Cope CONG. & ADM News. 4976-77, with H. R. Rep. NO. 1606, 92d Cong., 2d Sess. 3-4 (1972). re- prinied in 1972 U. S. Cope CONG. & ADM. News 4972-73; see S. REP No 1292, 92d Cong.. 2d Sess. 1-2. 7-9 (1972). reprinted in 1972 U.S. Cont ADM. NEWS 4948-49, 4954-56. w That is precisely the policy expressed in 31 U.S.C. §13 (a): The President cannot unilaterally do that which he can only recommend. As Justice Clark stated: “[W]here Congress has laid down specific procedures to deal with the type of crisis confronting the President, he must follow those procedures in meeting the crisis... .°° 343 U.S. at 662. Thus. given the several alternatives available to the Executive to deal with the alleged conflict between the debt ceiling and appropriations. the executive branch should choose one of them rather than circumvent the intent of a congressional enactment, as it has done in the instant case by reducing allotments.*” Therefore. the debt ceiling conflict cannot serve as a legal justification for the unilateral termination of a congressionalls authorized program. The Administrator has alleged only a po- tential conflict. Even if such conflict were real. statutory pro- cedures are available to resolve the conflict. procedures which the Executive has failed to follow. Moreover. as Youngstown has determined, when a subject is within the purview of con- gressional power, and Congress has acted. the President may not act in contravention of the stated legislative policy. 343 U.S. at 386-89. rurther, the Executive has urged the responsibility to man- age the economy under the 1946 Employment Act. 18 U.S.C. §§1021-25 (1970). as conflicting with expenditure statutes."! ~ “Whatever the merit of Administrator's reliance on the debt ceiling. it is clearly a reason collateral to and remote from the purposes of the water pollution control program. Therefore, it falls within the prohibition estab- lished by State Highway Comm'n v. Volpe, 479 F.2d 1099, 1114 Sth Cir 1973). where the court held that the Secretary of Transportation could not withhold funds from state highway programs for reasons remote from and unrelated to those which Congress had established. See Guadamuz v. Ash. 368 FF. Supp. 1233. 1241 (D.D.C. 1973). “OMB Report Under Impoundment & Information Act. 39 Fed. Ree 7707, 7708 (1974). reprinted in 120 CONG. REC. $4616, $4617 (daily ed. Mar 28. 1974); Hearings on Executive Impoundment of Appropriated Funds Before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 92d Cong... Ist Sess. 97 (1971) testimony of Caspar Weinberger). a? ahaa SNRs a A Ee Bi Gime ae Say Mabe eRe RS Rt els PRR at a a WU EEA to Aba Pe ad Bs catetartiaartttueaiin’ cats 40 The Employment Act was designed to institutionalize the bud- get as an economic tool. S. BAILEY. CONGRESS MAKESALAW: THE STORY BEHIND THE EMPLOYMENT ACT OF 1946, at 11-12 (1950). The Employment Act itself gives ne particular power to the President. In fact. it limits him to an advisory role and places enactment power in Congress. There is no refer- ence to inflation in the Act, and the timing of its passage im- mediately after World War II confirms that the main concern was promoting an economy able to provide jobs for the return- ing veterans, rather than fighting inflation.*° In its original form the bill was titled Full Employment Act and was dedicated to that goal. S. BAILEY. supra; see 15 U.S.C. §1021 (1970). A log- ical construction of the Employment Act indicates that it con- templates final policy determinations be:7g made by Congress. Although recommendations from the President are envision- ed. the provisions for a congressional committee indicate the intent for ultimate legislative input. See 15 U.S.C. §§1022-24 (1970). The Act would, therefore, not justify impoundment without review or approval by Congress.** See Massachusetts v. Weinberger, Civil No. 1308-73 (D.D.C., July 26, 1973), re- printed in 119 CONG. REC. S15044, §$15045 (daily ed. July 30, 1973). See also Louisiana v. Weinberger, 369 F. Supp. 856, 864 (E.D. La. 1973). ™Economic studies have raised questions as to the efficacy of im- poundment as a fiscal tool. The studies indicate that current impoundments have caused some unemployment and have failed to significantly reduce inflation. Levinson & Mills, Budget Reform and Impoundment Control, 27 VAND.L. REV. 615, 620-21 (1974); Findings of McIntosh Foundation Execu- tive Impoundment Project. 119 CONG. REC.S21120, §$21124 (daily ed. Nov. 27, 1973). The Administration has also cited the Economic Stabilization Act Amendments of 1971, 12 U.S.C. §1094 (Supp. I] 1972), as a broad grant of power to the President to impound for economic reasons. OMB Report Under Federal Impoundment & Information Act, 38 Fed. Reg. 19,582 (1973). However. amendments enacted in 1973 contain a direct prohibition of impoundments underthe Act. Pub. L. No. 93-28 ( Apr. 30. 1973). §4, 87 Stat. 27. 12 U.S.C.A. §1904, note (Supp. 1974). 41 Thus, when juxtaposed with the statutory mandate of the Water Pollution Control Act for full allotment and the policy that the waters of America be restored by 1985, neither the debt ceiling nor the 1946 Employment Act present the Execu- tive with conflicting statutory responsibilities so as to justify unilateral reduction of allotment under the “faithfully exe- cute”’ clause. Reason and precedent dictate that the direction to “faithfully execute” is not a carte blanche to arbitrarily cur- tail some programs and execute others. See National Council of Community Mental Health Centers, Inc. v. Weinberger, 361 F. Supp. 897, 901 (D. D.C. 1973). See also National Treasury Employees Union v. Nixon, 492 F.2d 587, 604 (1974). In a memo regarding impoundment written while an Assistant Attorney General, Justice William Rehnquist reasoned: “Tht seems an enomalous proposition that because the Executive branch is bound to execute the laws, it is free to decline to execute them.’**’ Further. the Court has stated: To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to for- bid their execution, is a novel construction of the consti- tution, and entirely inadmissable. Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524. 613 (1838). The Executive's failure to faithfully execute the Water Pol- lution Control Act, by refusing to allot, amounts to legislation, a power clearly prohibited to the Executive. See Local 267/, AFGE v. Phillips, 358 F. Supp. 60, 76-77 (D. D.C. 1973). See also Guadamuz v. Ash, 368 F. Supp. 1233, 1241-42 (D.D.C. 1973). Inthe Federal Convention of 1787. the States unanimous- ly rejected a motion “that the National Executive have a power **Memo from William Rehnquist reproduced in Joint Hearings on S. 373 Before the Ad Hoc Subcomm. on Impoundment of Funds of the Senate Comm. on Government Operations and the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 934 Cong., 1st Sess. 390. 394 (1973). id SD eee Blea ee a il Bes ATES BN CME SBE rk wr et Si Gis ne eee SEOs Ey or BS ER ie FERPA RICE PRAMAS we wrialatlS it AIOE ae A. Diitucititisrconniss 42 to suspend any Legislative act.....°** As the Court stated in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952). “the President's power to see that the laws are faith- fully executed refutes the idea that he is to be a lawmaker.” Clearly, the faithfully execute clause does not authorize the Executive's actions in the instant case. In fact, the clause pro- hibits and condemns the failure to fulfill the mandate of the Water Pollution Control Act. B. THE EXECUTIVE DOES NOT HAVE INHERENT AUTHORITY TO REFUSE TO CARRY OUT THE PUR- POSES AND PROVISIONS OF CONGRESSIONAL PRO- GRAMS DULY ENACTED INTO LAW. The President asserts that he has the inherent power to im- pound,” on the basis of the constitutional provision that ‘(t]he executive Power shall be vested in a President of the United States of America.” U. S. CONST. art. IT, §1. In deter- mining the extent of power inherent in the presidency, there are generally three criteria: (1) the lack of an express constitutional commitment of power to a coordinate branch or of an express prohibition ofits exercise by the President; (2) the historical and customary exercise of a power by the Executive over a \ KH. R. Doc. No. 398, 69th Cong.. Ist Sess. 152 (1927) (Documents I- \ lustrative of the Union of American States); see id. at 753. At a news conference held in January, 1973, the President stated: The constitutional right for the President of the United States to im- pound funds and that is not to spend money. when the spending of money would mean either increasing prices or increasing taxes for all the people. that right is absolutely clear. 9 WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS 11 (1973). See also Joint Hearings on S. 373, supra note 37, at 270 (statement of OMB Director Roy Ash); id. at 369 (statement of Deputy Attorney General Joseph Sneed); id. at 836-37 (Dep't of Justice Answers to Questions Concerning impounding of Appropriated Funds Posed by Sen. Ervin in his letter of Feb. 14, 1973. to the Dep. Att'y Gen.). . 43 long period of time, coupled with tacit or express congression- al approval; and (3) the existence of a situation that necessi- tates executive action for the public interest. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585-89 (1952): Fong Yue Ting v. United States, 149 U.S. 698, 711 (1893): Legal Tender Cases, 79 U.S. (12 Wall.; 457, 534-35 (1871). No provision of the Constitution clearly commits the *‘im- poundment’’ power to a coordinate branch or explicitly pro- hibits its exercise by the President. The grant of the appropria- tion power to Congress does not. on its face, give Congress power over the manner in which appropriations are executed, although this extension may be reasonably implied as a neces- sary adjunct. However, other constitutional provisions bear directly on the issue and provide a textually demonstrable commitment of the power to make policy as distinguished from merely spending. Article 1 of the Constitution vests the legisla- tive power in the Congress. This implies that Congress alone shall determine national policy except: (1) when a veto is sus- tained, (2) when a statute is declared unconstitutional, or (3) when the Constitution commits certain policymaking power to another branch.*° One of the principal methods by which Con- gress can determine national policy is by enacting authoriza- tion or appropriation bills. Thus. if the Executive impounds funds or terminates programs and thereby frustrates the con- gressional policy underlying the authorization or appropria- tion, he usurps the policymaking power, which article I vests in Congress. Therefore, as to impoundments that affect legisla- tive policv. a textually demonstrable commitment is present Levinson & Mills. /mpoundment:A Search for Leval Principles, 26 U. FLA. L. REV. 191, 193 (1974). 44 which precludes exercise of inherent presidential authority."' Where the text is unclear, the standard is whether the prac- tice is one of long standing and whether action or inaction of Congress has added a gloss to presidential powers. In United States v. Curtiss-Wright Export Corp.. 299 U.S. 304 (1936), the Court ruled that the President was the nation’s representa- tive in foreign affairs and cited prior congressional acts which took cognizance of that fact. In United States v. Midwest Oil Co., 236 U.S. 459 (1915), the Court found that even congres- sional silence could acknowledge the existence of an executive power, The Court emphasized, however, that the holding did not “‘mean that the Executive [could] by his course of action create a power.”* /d. at 474. Thus. even though an act may con- tinually occur, it may still be unconstitutional. The President is currently relying heavily on long standing, congressional inaction in the face of ongoing impoundment.*” However. the historical argument as applied to the instant case and other contemporary impoundments is without support since President Nixon’s impoundments are significanth dif- ferent from those of past administrations.** Before Franklin TSreLouisiana V. Weinberger, 369 F. Supp. 856, 864-65 (E.D. La. 1973): Guadamuz v. Ash, 368 F. Supp. 1233, 1241, 1243-44 (D. D.C. 1973); Community Action Programs Executive Directors Ass'n of New Jersey. Inc. v. Ash, 365 F. Supp. 1355, 1360-61 (D. N.J. 1973). National Council of Community Mental Health Centers, Inc. v. Weinberger. 361 F. Supp. 897, 9010D. D.C. 1973); Oklahoma v. Weinberger, 360 F. Supp. 724, 728 (W.D. Okla. 1975); Local 2677, AFGE v. Phillips. 358 F. Supp. 60. 76-78 (D. D.C. 1973); American Ass'n of Colleges of Podiatric Medicine v. Ash. Civil No. 1139-73, Slip Op. at 3(D.D.C., Oct. 26, 1973): Massachusetts y. Weinberger, Civil No. 1308-73 (D.D.C., July 26, 1973) reprinted in 119 ConG. Rec, S1S044, § 15045 (daily ed. July 30, 1973); National League for Nursing v. Ash, Civil No. 1316-73, Slip Op. at 4(D.D.C., July 10 1973), See Joint Hearings on 8.373, supra note 37, at 389 (remarks of Dep. Atty Gen. Sneed). ‘Levinson & Mills, /mpoundment: 4 Search for Legal Principles, supra note 40, at 198-99 (1974), see Fisher, /mpoundment of Funds: Uses and Abuses, 23: BUFFALO L. Rev. 141, 143-70 (1973); Miller, Impoundment: The New Constitutional Crisis, THE PROGRESSIVE, March 1973, at 1S. 48 D. Roosevelt there were but isolated instances of impound- ment,'! President Roosevelt impounded only public works and military appropriations."” The aaministrations of Presidents Truman, Eisenhower, and Kennedy reveal no pattern of im- pounding domestic non-military appropriations.” Further, two Presidents specifically stated they felt they did not have the power to affect statutory policy by controlling spending." Not until the Johnson Administration have amounts been im- pounded from domestic programs for fiscal reasons. How- ever, the Johnson precedent, less than ten years old, provides no support for similar action by his successors. The Nixon impoundments, while similar in the aggregate amounts involv- ed, are qualitatively different. The Johnson impoundments had relatively minor impact upon most programs.** In contrast, President Nixon has deliberately and frankly imposed his own "See Stanton, The Presidency and the Purse: Impoundment 1803-1972, 45 U. Coto. L. REV. 25, 26-28 (1973). "Williams, The Impounding of Funds by the Bureau of the Budget, reprinted in Joint Hearings on §.373, supra note 37, at 844, "See Fisher, Presidential Spending Discretion and C ‘ongressional Con- trols, 37 LAW & CONTEMP. Pros. 135, 162 (1972). "With regard to his own exercise of spending discretion, President Franklin D. Roosevelt. a proponent of a strong presidency, stated: “[o}ur Statutory system of fund apportionment is not a substitute for item or blanket veto power and should not be used to set aside or nullity the expressed will of Congress....°° Letter from President Roosevelt reproduced in part in Hearingson H.R. 3598 Before a Subcomm. of the Senate Comm, on Appro- priations, 78th Cong., Ist Sess. 739 (1944), President Kennedy also rejected a broad power to impound with regard to federal funds to be given to segre- gated schools. Although he believed such funding violated the equal protec- tion and due process clauses as interpreted by the Court, he stated: “I don't have the power to cut off the aid in a general way... .and | think it would probably be unwise to give the President of the United States that kind of power.” N.Y. Times, April 20, 1973, at Hl. col. 8, Note, /mpoundment of Funds, 86 HARV. L. Riv. 1808, 1812 (1973): Findings of McIntosh Foundation Executive Impoundment Project, 119 CONG, REC. S21120, S21125 (daily ed. Nov, 27, 1973), ROT) reds eohaew) en “ ‘ - 8 ee ere 46 priorities,*” and has thereby frustrated the intent of Congress with regard to numerous domestic programs.” This policy- oriented series of impoundments ts unsupported by tradition’! and. therefore, can not justify reliance upon inherent authority as a predicate for terminating congressionally authorized pro- grams, The public interest factor, the third criterion for recognition of inherent executive power, applies only to saort-term reac: tions to emergency situations, In re Neagle, 135 U.S. 11890), where legislative ratification is expected, United States v. Mid- west Oil Co., 236 U.S, 489 (1915), In the instant case no such emergency has even been alleged by the Administrator. Further, even a purported ‘national emergency" is notalways sufficient to sustain a claim of inherent power. In Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. §79 (19582), the Court ruled that the President was not empowered to seize the steel mills in order to maintain production for the war effort. Moreover. even if a “national emergency” of a magnitude to justify 58% allotment reduction was in existence, there is no expectation of legislative ratification. United States v, Mid- west Oil Co., 236 U.S. 459 (1915). To the contrary, congres- sional response to this kind of behavior by the Executive has been severe.”* Wt is difficult to deny that President Nixon himself felt that allotment of authorized funds was mandated by the Act, precisely because he vetoed iton the grounds that it was too expensive. There was no point in the veto-if the unfettered discretion the President now asserts had existed. In effect, the President has reinstated the veto which Congress ov errode by merely read- ing the statute as he chose. = Fisher, Lmpoundment of Funds: Uses and Abuses, supra note 43, 4 169-88: Levinson & Mulls, Bialget Reform and impoundment Control, 2 VAND L. REV 618, 618, 620 (1974), Levinson & Mills, Jarpoundment Search for Leval Principles, supra note 40, at 199, — ‘Yd: Joint Hearings on 8, 373, supra note 37, passin: Hearings on Evecutive Impoundment, supra note 44, passim “The new Congressional Budget and Impoundment Control Actot 1974 has restricted authority to accomplish withholding such as that accomplished in the instant case. See note 7h infra, ao 47 Another limitation to inherent power, which is particularly related to President Nixon's impoundments, was stressed in Curtiss-Wright, 299 U.S. 304(1936), where the Court recogniz- ed a distinction between inherent power in the realms of for- eign policy and domestic affairs. The Court stated that inherent powers were much more restricted in the domestic arena. id. at 320, in which most of President Ni..on's IMpoundments have occurred, including the instant case. See OMB Report Under Federal Impoundment & Information Act, 38 Fed. Reg. 19.581 (1973). Thus, the impounding of domestic pro- grams can derive little authority from the President's foreign affairs powers. See Guadamuzv. Ash, 368 F, Supp. 1233, 1243- 44 (D.D.C 1973); National Council of Community Mental Health Centers, Inc. v. Weinberger, 61 F. Supp. 897, 901 (D.D.C. 1973). To conclude otherwise would justify domestic executive action on a foreign policy basis fer almost any act imaginable. The distinction between the President's domestic and foreign affairs powers is meaningful only upon the assump- tion that some activities are regarded, for these purposes. as being too remote from foreign affairs. Impoundment of domes- tic program funds has only an indirect connection with foreign affairs, and does not invoke the foreign affairs power in the way indicated by Curtiss-Wright, No constitutional authority in the Executive. inherent or otherwise. grants the power to usurp prerogatives of another branch or ignore duly enacted laws. The Constitution recog: nizes specifically the Executive's role regarding the enactment of laws. The concept of inherent authority cannot be used as a means of appending an unconstitutional veto power to the leg timate executive duty to implement legislative policy. The Presider? must not be allowed to accomplish through im- poundment that which he could not accomplish through veto of the Water Pollution Control Act. C. THE EXECUTIVE'S REFUSAL TO IMPLEMENT THE WATER POLLUTION CONTROL ACT, EVEN AFTER PASSAGE OVER AN EXECUTIVE VETO. REPRE- SENTS AN UNCONSTITUTIONAL EXPANSION OF THE VETO POWER. The President's role in legislation is made clear in the veto provision of the Constitution, Art. 1. $7. When Congress pass- es a bill, the President has the power to veto it, after which it returns to Congress and may be overridden. Discussions of the veto power in the Constitutional Convention show that a veto without override was considered (termed absolute negative”) but was rejected unanimously as placing too much authority in the hands of a single man.** In the case at bar. the unilateral refusal to implement a duly enacted statute deprived Congres» of its constitutional opportunity to override President Nixon's veto” accomplished by means of impoundment. If the Presi- dent frustrates the will of Congress by impounding. with no opportunity for congressional override. he achieves the equiv- alent of an absolute veto. In the instant case. the use of the con- stitutional veto had already been overrden and the impound- ment operated as a second and absolute veto. Moreover. the Executive in the instant case has exercised an unconstitutional item veto by failing to allot 55° of authorized funds. while allotting the balance. The Constitution makes no provision for an item veto and the numerous proposals to intro- duce this feature into the Constitution have been rejected.** ? § £icsor, Desates On Tat Adortios Ov Tue Peoewat CONsTiTUTIo® 141-44. $% MH fee 194i) + Comer. Tee Peestoest Orrick ASD Powtes m0 1tth od 941 Bo Wart act. Concarssion al Contam On Prorat SPENDING (41-42 (196, cee Note, The Item Veto in the Ameran Constitutional Svatewe, 24 Geo LF. 106(19%Od Jott Hearings on § 473, supra note 87, at 110-14 (Attachment to Statement of Comp. Gen bimer Stast>) Congress overrode the presidential veto of the Act by » sub- stantial margin and it should have henceforth been implement- ed consistent with the expressed will of the Act. Refusal to carry out the Act amounted to 4 circumvention and an addition to the constitutional process of veto. Il, THE SOVEREIGN IMMUNITY DOCTRINE ISNOBAR WHEN THE ADMINISTRATOR FAILS TO PERFORM A STATUTORY DUTY OR EXCEEDS HIS DISCKE- TION. The assertion of sovereign immunity has been almost uni- formly rejected in impoundment cases*® and does not present a bar to justiciability in the instant case. Rejection of sovereign immunity is supported by the reasoning that the doctrine is not intended to protect actions outside the law. The doctrine of wvereign immunity has been continually eroded both through specific waivers** and a general narrowing of the doctrine’ although it is still routinely raised by the Government.** “New York v. Train, 494 F.2d 1033, 1048-9 DC Cir, 1974): Cam- pan Clean Water, Inc. + Train, 489 F 2d 492. 495 14th Cir, 1973) State Highway Comm'rs Volpe. 479 F.2d 1099, 112308th Cir, 1979): Louisiana + Weinberger, M9 F. Supp. 8%. 861-62 (FD. La. 1973): CGuadamuz ¥. Ash. 48 F.Supp. 123°, 12381D. D.C. 1973): Browns Ruckelshaus, 364 F. Supp 298, 26110. D. Cal. 1973); National Council of Community Mental Health Centers, Inc. ¥. Weimberger, Wi f Supp. 897, WOKD DC. 197%: Local 2677. AGE ©. Phillips, 346 1 Supp. 0), OB ED DC. 197%. Bat oe Housing Authority of San Francisco + HUD, 340 F. Supp. 654, 656.N_D Cal 1972); San Francisco Redevelopment Agency + Nixon, 329 F Supp 672 (ND. Cai. 1971) “Two major examples of general waivers of immunity ate the Tucker Set, 28 U S.C. $1491 (1970), and the Tort Claims Act of 1946, RU SO 91346 1b) 1 1970): specific statutes alo allow suit against individual agencies. we. «., Housing Act of 1997. 42 US. 61401-3561 197H) “Eee. Land ¥. Dollar, 130 U8. 731 (19487) “See Hearings on Sinercign Immunitn Before the Sub omm. on (dministrative Practicn and Prwedure of the Senate Comm. on thy Judiciary, Wt Cong, 1b Sess 8-W, 64-75 (1970) 7 — o — —F ere Oe eR Sees x A. THE ADMINISTRATOR'S ACTIONS ARE IN VIOLA- TION OF HIS LEGAL DUTIES UNDER THE ACT AND CONSEQUENTLY SUIT MAY BE BROUGHT THROUGH AN “OFFICER SUIT.” A WELL ESTAB- LISHED EXCEPTION TO SOVEREIGN IMMUNITY. Judicial review has been made available when the officer or federal agency has acted in excess of its statutory authority. acted in an unconstitutional manner, or acted pursuant to an unconstitutional grant of authority. Dugan v. Rank, 372 U.S. 609. 621-22 (1963); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-91 (1949). In addition. Rockbridge v. Lincoln, 449 F.2d $67, $72-73 (%h Cir. 1971), established that the exception applies when an official fails to perform a statu- tory duty. An action. within the exception to the doctrine, against an official or agency is commonly known as an “officer suit.” The philosophy behind the exception to the sovereign immunity doctrine is expressed in The Floyd Acceptances, 74 U. S. 666, 676-77 (1868): We have no officers in this government. from the Presi- dent down to the most subordinate agent. who does not hold office under the law, with prescribed duties and limit- ed authority. It is explicitly alleged in the instant case that the Administra- tor not only acted beyond his statutory authority in failing to comply with the mandatory allotment. but he also acted in an unconstitutional manner. All courts which have ruled on the Water Pollution Control Act impoundments have found that sovereign immunity presents no bar to judicial review when ——————————— SI there is an allegation and subsequent finding of violation of statutory or constitutional duty. Of the over sixty impoundment cases decided to date” in "Judge Merhige. in Campaign Clean W ater, Inc. v. Ruckelshaus, OI F. Supp. 689. 694-95 (ED. Va.) remanded with directions sv nom. Cam- pain Clean Water, Inc. v. Train, 489 F.2d 492 (4th Cir. 1973). held- ‘ae Instant matter squarely falls .. .within a well-settled exception to the sovereign immunity doctrine... .suit may be brought against an officer of the United States to challenge an action which alleved/y eX- ceeds statutory authority or, if within the scope of authority. is pre- Mised upon a power which is unconstitutional... . The complaint alleges that the defendant has exceeded his statutory authority in impounding funds. If sustained on the merits. plaintiff will come with- in the above recited exception to the doctrine. (emphasis added). In New York v. Ruckelshaus. WR F. Supp. 669. 673(D. D.C. 1973). aff'd sub nom New York v. Train, 494 F.2d 1033( D.C. Cir, 1974), Judge Gasch held: plaintiffs action falls sguarely within the exception covering suits challenging actions by federal officers which go beyond the scope of their statutory powers. Phe court in Brown v. Ruckelshaus noted: Both complaints alle ve that the E PA has exceeded its Statutory author- ity in impounding the authorized funds. If sustained on the merits. Congressman Brown and Los Angeles would fall within the exception... . 64 F. Supp. 258. 261(C.D. Cal. 1973) (emphasis added). See New York v. Train, 494 F.2d 1033, 1038(.D.C. Cir. 1974); Campaign Clean Water. Inc. v. Frain, 489 F.2d 492. 495 (4th Cir. 1973). Further. other courts considering impoundment cases have consistently ruled that allegations of breach of “Matutory duty defeat any claim of sovereign immunity. In Louisiana 4 cinhereer, 69 F. Supp. 856, 861-62(E.D. La. 1973). the court maintained: It has now been held in several cases that the sovereign immunity doctrine does not bar impoundment suits which are based on the allegation that defendants’ actions are beyond the scope of their Satutory authority and are. therefore. unconstitutional. (emphasis added). “The most comprehensiv> collection of impoundment cases decided by federal courts is L. Fisuer.C JRT CASES ON IMPOUNDMENT OF FUNDs 4 PuBLic PoLicy ANAL ysis (Congressional Research Service. Library of Congress. multilith. March 15. 1974), 2 hake DUN Sy ltle Rte DieRe Ae ent = et ot ee ee OR OSCR ales sch eteRlgPn on inte ab Soe SR ae NO. Brite: itt 20 ee EE NS rn Pee 4” which sovereign immunity has been raised, only one has ac- cepted the defense of sovereign immunity.®! Housing Author- itv of San Francisco v. HUD, 340 F. Supp. 654, 656(N. D. Cal. 1972). In this case, the district court interpreted the statute involved to be discretionary. Sovereign immunity applied since the Administrator, in the court's understanding, acted within the discretionary language. Given this conclusion, the holding is consistent with the doctrine of Larson. An additional restriction to waiver of sovereign immunity exists where a judgement **would expend itself on the public treasury or domain or interfere with the public administra- tion.”’ Land v. Dollar, 330 U.S. 731, 738 (1947). This was fur- ther detailed by the Court in Larson to allow sovereign immu- nity to prevent a suit where judgement "will require affirmative action by the sovereign or the disposition of unquestionably sovereign property.”” Larson v. Domestic & Foreign Finance Corp., 337 U.S. 682, at 691 n.11 (1949). The Ninth Circuit interpreted Larson as applying where “relief sought would work an intolerable burden on governmental functions. out- weighing any consideration of private harm.” Washington v. Udall, 417 F.2d 1310, 1318 (9th Cir. 1969). The instant case involves no expenditure on the treasury or interference with public administration. If anything, the action in the case at bar promotes compliance with public ad- ministration according to the law. Further, there is no expend- iture from the treasury for two reasons. First. ordering the "'In another case. San Francisco Redevelopment 4 gency v. Nixon, 329 F. Supp. 672(N.D. Cal.1971), the district court avoided consideration of the exception to sovereign immunity by simply holding that mandamus would not lie io force President Nixon to allot funds. The court believed it could not direct a mandate toward the person of the President. This view, however. has been overruled. k.v., National Treasury Employees Union v. Nixon, 492 F.2d $87. 6161 D C. Cir. 1974). st Ra a ll A 0 §3 Administrator to allot results only in funds being made avail- able for obligation and does not result in expenditure.** Second, the funds are already authorized to be expended by law; there is No uNconsented 4rain on the treasury -- “the sovereign” has already consented to expenditure by making a law allowing expenditure.“* The Ninth Circuit in Rockbridge similarly reasoned: “In New York v. Ruckelshaus, 388 F. Supp. 669, 673 (D. D.C. 1973), Judge Gasch held: Defendant is not aided by the general rule set forth in Land vy. Dollar... for. . the relief sought by plaintiff in this action does not a. Pequire the expenditure of unappropriated public funds (or indeed of any public funds at all). nor will it interfere with the law ful exercise of defendant's discretionary powers under the Act... . Plaintiff is de- manding only that funds be allotted as, in its view. Congress required. Similarly. it was held in Brown v. Ruckelshaus. ¥64 F. Supp. 258. 261(C_D. Cal. 1973): Here the suit is... .requesting relief that does not require the expendi- ture of any unappropnated funds. They only ask for the allotment of the funds. and the EPA retains the discretion not to incur any obliga- tion to expend them. There is no interference with the lawful exercise of Defendant's discretionary powers under the Act. The district court in Texas v. Fri held: the relief would not cause the expenditure of any unappropriated funds but only the allotment to the States of such funds... While these funds would become available for obligation, they would not thereby become obligated until Defendant approves a specific grant. No. A-73, CA-38, Slip Op. at 3(W.D. Tex.. Oct. 2. 1973). appeal argued, No. 73-3965, Sth Cir.. Apr. 29, 1974, “Lower courts have consistently held that sovereign immunity is not a bar if the funds to be expended have already been authorized or appropriated by Congress. In National Council of Community Mental Health Centers. Inc. v. Weinberger, Wl F. Supp. 897, 900 (D. D.C. 1973). the court held: [A}ny affirmative order of this Court would be premised on a determi- nation that official action by the defendants in refusing to spend és beyond their statutory or constitutional powers. This would go no further than to require the spending of funds already appropriated by Congress to achieve the declared purposes of the Act. Accordingly. there can be no effective assertion of sovereign immunity and the defendants’ actions are reviewable by the courts. (cont'd) Beretta remade an Oe oo SRC S4 Appellants are not seeking money damages from the government, nor are they seeking to assert some right against it or to block a government project. The relief they seek does not in any way affect the sovereign power of the United States. The government is not asked to give up a right, to grant a concession, to dispose of property or to relinquish authority. Appellants merely seek a court order directing certain government officials to perform acts which Congress has already directed those officials to perform.... 449 F.2d 567. 573 (9th Cir. 1971). Judgement in the case at bar is not an ‘intolerable burden” but merely an enforcement of a duty. The action does not seek the actual expenditure of funds, but is only seeking perform- ance of a ministerial act. The Executive may not rely on the doctrine of sovereign immunity to frustrate the will of the sov- ereign. The Constitution vests control over the government s property and grants the power to appropriate and legislate to Congress. When Congress enacts a law to expend, as with the Water Pollution Control Act. enacted over presidential veto. ee ** (cont'd) The district court in Local 2677, AFGE v. Phillips, 358 F. Supp. 60, © 8-69 (D.D.C. 1973). held: the relief which the Plaintiffs seek would not be a drain on the public purse. No injunction to spend unappropriated funds ts sought... {A]ny order of this Court requiring the defendant to act in accordance with the mandate of Congress would draw upon funds appropriated for that purpose. In State Highway Comm'n vy. Volpe, 479 F.2d 1099, 1123 (8th Cir. 1973). the Eighth Circuit Court of Appeals maintained: we do not consider the court's decree . .as being affirmative in nature. It requires only that the defendent officers cease unauthorized ac- tion... . The resultant release of funds is only to the extent that Con- gress has already authorized them to be appropriated and expended. ss the sovereign has expressed its will.“ The Administrator alleges “plaintiff is seeking to compel a government official to furnish him with greater government funds than the official be- lieves is appropriate ....°° Brief for Petitioner at 37-38. The observation is exactly true and demonstrates precisely why States and municipalities must seek to compel the ‘official’ to perform his duty according to statutory intent as interpreted by the Court rather than according to what the official “believes is appropriate.”’ B. THE ADMINISTRATIVE PROCEDURE ACT OPER- ATES AS A WAIVER OF SOVEREIGN IMMUNITY AND PERMITS REVIEW OF THE ADMINI- STRATOR’S REFUSAL TO ALLOT. While sovereign immunity can be avoided by the “officer suit.” it is also waived by the APA. which would likewise allow review in the instant case. The provision which supports waiver is section 10. 5 U.S.C. §702. Whether section 10 con- stitutes a basis for waiver of sovereign immunity has been a much debated issue. The Administrator summarily alleges the APA is nota waiver of sovereign immunity, citing Blackmar v. Guerre, 342 U.S. 512. 515-16 (1952), in which the statement was made: “"Still less is the Act to be deemed an implied waiver of all governmental immunity from suit.’ Of course the argument in the instant case is not that there is a general waiver of all immunity but that the A PA, in in- stances where an administrator exceeds his authority, grants the right to review to ** [a] person... .adversely affected or aggrieved by agency action. ..."° 5 U.S.C. §702 (1970). “In effect. the enactment of legislation to dispose of property is a waiver of sovereign immunity. See Comment. Presidential Impounding of Funds: The Judicial Response, 40 U. CHL L. REV... 328. 349 (1973). Waiver is undisturbed by later administrative actions contrary to congressional policy. Clakamas County v. McKay. 219 F.2d 479, 493 ( D.C. Cir. 1954), vacated as moot, 349 U.S. 909 (1955). S6 Sovereign immunity has been increasingly abrogated by find- ings that the APA is an implied waiver.©* Three circuits now adopt this position."* Although a majority of circuits have not accepted the proposition that the APA is an implied waiver. the better conclusion is that an act which shows as one of its goals reviewability of agency action would contemplate a waiver of sovereign immunity to allow that review.*’ As the Es D.C. Circuit has reasoned: ** It seems axiomatic to us that one 7 3 must imply, from a statement by the Congress [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1612%3A15. Public record. Not legal advice.