WINNING THE BUDGET BATTLE

 

[Published in the Sunday Guardian of India and Newsmax]

The best way to effectively end waste and rein-in government spending is to have the U.S. Supreme Court declare the Congressional Budget and Impoundment Control Act of 1974 (Public law 93-344) unconstitutional.

America’s public debt is currently $36.22 Trillion. It was only $475 billion when the Congressional Budget Act became law in 1974.

The Congressional Budget Act created the current framework within which the Federal Budget is proposed, passed, and implemented.  It placed Congress firmly in the driver’s seat, and blocked future President’s from taking actions deemed constitutional and prudent for over 171 years.

The result was instant and dramatic.  In the six years prior to the 1974 Act, the federal budget increased on an average of $13.4 billion annually.  In the seven years after the Act, the federal increased by over $49 billion annually.

The Peterson Foundation for the study of the National Debt observed: “From 1950-1974, federal deficits averaged 0.7% of GDP. After the Congressional Budget Act was adopted, from 1975-2007, deficits averaged 2.5% of GDP. And when the Congressional Budget Act was enacted in 1974, real (inflation-adjusted) U.S. government debt per person was $3,240.”

Today, U.S. Government debt is $106,024 per person.

Expanding Presidential power usually erodes democracy, expands government, and facilitates the rise of an increasingly unaccountable “Imperial Presidency”.  Ironically, giving Presidents more power to control spending would do just the opposite.

The struggle over government spending has been a fundamental point of contention since the earliest days of our Federal Government.

Article I of the U.S. Constitution outlines the power of Congress to create laws [Sections 1 & 8] and the prevailing nature of those laws once signed by the President or passed over a Presidential Veto [Section 7].
Article II of the U.S. Constitution vests all executive power in the President of the United States [Section 1].

This division of power and responsibility was validated by Chief Justice John Marshall in 1825, "the difference between the departments undoubtedly is that the legislature makes, the executive executes, and the judiciary construes the law." [Wayman v. Southard, 23 U.S. 1, 44 (1825)]

Earlier, Chief Justice Marshall, in his famous Marbury v. Madison, defined the difference between political acts belonging to the executive branch alone as opposed to those executive acts governed by congressional enactments: “He acts, in this respect.., under the authority of the law, and not by instructions of the President.  It is a ministerial act which the law enjoins on a particular officer for a particular purpose...”
[Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 2 L.Ed. 60 (1803)]

However, what happens if Congress creates programs that eventually become unnecessary or obsolete? What happens if Congress continues to authorize and appropriate funds for those programs? What happens if Congress provides more funds than recommended by the Executive Branch or exceeds documented need?

President Thomas Jefferson was the first to test the boundaries of Executive authority to second guess Congressional spending. In the wake of the 1803 Louisiana Purchase, Jefferson reported that, "the sum of $50,000 appropriated by Congress for providing gunboats remains unexpended. The favorable and peaceful turn of affairs on the Mississippi rendered an immediate execution of that law unnecessary.... "

Following Jefferson’s precedent, subsequent Presidents selectively withheld appropriated funds on programs that were no longer needed. They also asserted they were effectuating congressional intent not circumventing it.

The Depression and World War II provided opportunities for President Franklin Roosevelt to stretch budgetary discretion beyond Jefferson’s “economy” precedent. He moved funds away from what he deemed less important programs to more pressing programs. Post war demobilization gave President Harry S. Truman additional opportunities to hold back Congressional spending. Truman impounded $735 million in additional funds appropriated by Congress to increase to 58 from 48 the President's request for Air Force groups.

This expanded justification for Presidential Impoundment of Congressional funds became bi-partisan when President Dwight D. Eisenhower, set aside $137 million appropriated for the initial procurement of Nike-Zeus anti-missile system hardware. John F. Kennedy impounded $180 million appropriated by Congress over the President's request for developing the B70 Bomber. Lyndon B. Johnson unilaterally decreased federal spending by $5.3 billion to mitigate the inflationary impact of the Vietnam War.

Congress initially supported the President’s role in managing public funds. The Anti-Deficiency Act of 1905 provided that appropriations may, “… be so apportioned by monthly or other allotments as to prevent expenditures in one portion of the year, which may necessitate deficiency or additional appropriations to complete the service of the fiscal year for which said appropriations are made."

The Revised Anti-deficiency Act of 1906 stated: "Whenever it is determined...that any amount so reserved will not be required to carry out the purposes of the appropriation concerned, he [President] shall recommend the rescission of such amount ..."

President Warren Harding’s Budget Bureau Director, Charles E. Dawes, further asserted that an agency was not required to spend its total appropriation if it could fulfill its objectives by spending a lesser amount.

Omnibus Appropriations Act of 1951, continued to expand Presidential flexibility on managing and controlling spending: “In apportioning any appropriations, reserves may be established to provide for contingencies or to affect savings whenever savings are made possible through changes in requirements, greater efficiency of operations, or other developments subsequent to the date on which such appropriation was made.”

Legislative liberals began to challenge Presidential spending control.  Congressman George H. Mahon (D-TX) raised concerns regarding the passage of the 1951 Act: "I would not object, as I know other members would not object, to any reasonable economies in government. But economy is one thing, and the abandonment of a policy and program of Congress is another thing."

Recipients of federal funds began to challenge Presidential control of spending.  The Supreme Court, led by Chief Justice Earl Warren, began to constrict Presidential impoundment and other executive branch practices to control spending. 

These new battle lines hardened when President Richard Nixon mounted a more aggressive and effective effort to rein-in federal spending.  The Supreme Court, even under centrist Chief Justice Warren Burger, continued to build legal precedents against Presidential budget frugality.

“Article I, Section 1, of the Constitution vests "[a]ll legislative powers" in the Congress. No budget message of the President can alter that power and force the Congress to act to preserve legislative programs from extinction prior to the time Congress has declared that they shall terminate, either by its action or inaction.... Thus, in absence of any contrary legislation, the defendant's plans to terminate the CAA functions and the OEO itself are unlawful as beyond his statutory authority.” [American Federation of Government Employees v. Phillips, 358 F. Supp. 60 (1973)]

Nixon continued to impound congressionally appropriated funds. During the 1973-1974 budget year, Nixon refused to spend $12 billion. Congressional Democrats, sensing the decline in Presidential power in the wake of the mounting Watergate scandal, passed the Congressional Budget and Impoundment Control Act of 1974. Nixon signed the law on July 12, 1974, one of his final major acts in office.

After extinguishing the President’s ability to control spending the federal budget more than tripled in just ten years.  From $269 billion in Fiscal 1974 to $851 in Fiscal 1984. Annual federal spending is now $6.5 trillion.

When the Republicans retook the House of Representatives after forty years, Newt Gingrich tried to reassert the President’s role in budget management by proposing the Line-Item Veto.  This was a key part of his 1994 “Contract with America”. It became a rallying cry for fiscal “hawks” from across the political spectrum. Former President Ronald Reagan added his voice to the renewed effort: “When I was governor of California, the governor had the line-item veto, and so you could veto parts of the spending in a bill. The president can’t do that. I think, frankly—of course, I’m prejudiced—government would be far better off if the president had the right of line-item veto.”

The bill was introduced by Senator Bob Dole (R-KS) on January 4, 1995, cosponsored by Senator John McCain (R-AZ) and 29 other senators. Related House Bills included H.R. 147, H.R. 391, H.R. 2, H.R. 27 and H.R. 3136. The bill was signed into law by President Bill Clinton on April 9, 1996.

Budget “hawks” from both parties cheered, and President Clinton began using the line-item veto and budgets became balanced.  Senator Robert Byrd (D-WV), and others who opposed this “assault on Congressional prerogatives”, filed in court to void the law.  Their case was tossed out over lack of standing. Another case, filed by a city, succeeded in declaring the Line-Item Veto unconstitutional. [Clinton v. City of New York, 524 U.S. 417 (1998)]

On January 31, 2006, President George W. Bush proposed the “Legislative Line-Item Veto Act of 2006”.  Conservatives once again rallied to giving the President expanded budgetary powers. It was introduced in the House by Rep. Paul Ryan (R-WI) and passed overwhelmingly on June 22, 2006. However, the Senate killed similar legislation.

Elon Musk’s Department of Government Efficiency (DOGE) reveals daily evidence of how unbridled government spending wastes billions while lining the pockets of favored contractors and corrupt officials.

America is already barreling toward bankruptcy. Reestablishing the constitutionality of the President’s power to control spending is the only way to save us.