Vanderbilt Law Review

First Page



Impoundment has become a household word within the past two years, as controversy has raged over President Nixon's cutbacks of funds. Numerous significant governmental programs have been curtailed or disrupted. State and local governments face confusion about future funding. In dozens of cases, the lower federal courts have reviewed the exercise of Presidential discretion during the execution of appropriations, and in most cases the courts have determined that the President acted improperly. The underlying problem evidenced by impoundment remains unsolved, however, since it arises from tensions that build up throughout the budget process of the federal government, from the preparation of the President's budget recommendations, to the enactment of budget legislation, the execution of the budget and the post-audit of completed transactions. The courts have prudently refrained from examining any stage of the process other than the execution stage, and the courts have consequently been unable to fashion a comprehensive remedy. Thorough overhaul of the entire system is long overdue. The existing system dates back to 1921, but the size and complexity of the federal budget have increased to a staggering extent since then. Studies and proposals abound concerning not only the budget process but also such related matters as congressional committee structure, openness of governmental activities, and reorganization of the executive branch. The acute need for reform of the entire system was dramatized and publicized by the impoundment controversy of 1972-73. Bills pending in both Houses of Congress provide for impoundment control and budget reform. The bills in both houses emphasize the spending process (including the formulation, enactment and execution of appropriation) and its coordination with the totals of revenue and debt. The bills do not go into detail regarding reform of the revenue and debt functions, although significant procedural issues arise in these areas also. The emphasis on the spending process reflects the emphasis that the impoundment controversy has focused on spending rather than on other budgetary functions. This article summarizes various aspects of the impoundment controversy, as an introduction to the authors' recommendations for impoundment control and general reform of the budget process. The emphasis here, as in the congressional bills, is on reform of the spending function, and its coordination with total revenue and debt.