The Wars of Watergate (26 page)

In 1803, President Thomas Jefferson matter-of-factly reported to Congress that he had not spent a $50,000 appropriation for Mississippi River gunboats because “the favorable and peaceful turn of affairs … rendered an immediate execution of the law unnecessary.”
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Thus began the history of presidential impoundment of duly authorized funds. Impoundment had always posed practical constitutional problems, but these seemed of minor consequence until the Nixon Administration (with an important precedent from the Johnson years) transformed an occasional practice into a special test of wills with Congress. For Nixon, the exercise of impoundment also became part of his constitutional responsibility. In a January 31, 1973 press conference, he announced “the Constitutional right for the President of the United States to impound funds[,] and that is not to spend money, when the spending of money would mean … increasing prices or increasing taxes for all the people, that right is absolutely clear.”

It was not, however, “absolutely clear.” No constitutional language specified such authority. One favorite argument supporting impoundment was that the Constitution required the President to “take care that the laws be faithfully executed.” From this, the idea developed that if an appropriation
contravened the purposes of other statutes, the President had discretionary power to ignore it, thus harmonizing conflicting legislative objectives. Without doubt, Nixon escalated impoundment to a new level of “magnitude, severity, and belligerence,” wrote Louis Fisher, the leading authority on the subject.

Jefferson’s successors occasionally invoked his precedent, but usually as a discrete action rather than a considered, consistent policy. Following World War II, Presidents Truman, Eisenhower, and Kennedy used the power of impoundment to control defense spending and to resist crass, interest-group legislation serving the luxuriant demands of what later came to be called the military-industrial complex. The practice dramatically changed in 1966 when President Johnson announced that he would not spend $5.3 billion in appropriated funds for various domestic programs. He justified his action as necessary to curb the inflationary pressures created by dramatically accelerated war expenditures. Attorney General Ramsey Clark at the time provided a formal opinion justifying impoundment on the grounds that “an appropriation act in itself does not constitute a mandate to spend.”
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Johnson in effect framed his own constitutional question and provided an answer to suit his needs. Previous opinion within the executive branch usually had run the other way. FDR’s Attorney General, Homer Cummings, told him in 1937 that without legislative sanction, a presidential order withholding expenditures “would not be binding.” A Kennedy legal aide told the President in 1961 that aside from defense appropriations, impoundment “in the civilian area is not customary and of doubtful legal basis.” And Nixon’s Assistant Attorney General William Rehnquist substantially repudiated Clark’s extravagant view of impoundment powers and contended that the President was “not at liberty to impound in the case of domestic affairs” that had no relation to national-defense or foreign-policy considerations. But President Nixon’s actions, and the statements of his aides in the next four years, significantly undercut Rehnquist’s opinion.

When Nixon took office, Congress provided him with authorization to impound $6 billion from previously approved funding bills. In effect, Congress gave the President discretionary power to do what LBJ had done on his own. In allowing impoundment, the Democrats seemed inclined to prevent Nixon from preempting the spending and inflation issues. But politics had many faces, and the Democrats later found themselves obligated to defend and expand public projects beneficial to their traditional constituencies. In 1970–71 they did not confer further discretionary power, but the President nevertheless withheld nearly $13 billion. Senator Sam Ervin (D–NC) assembled his Subcommittee on Separation of Powers in March 1971 to engage in a colloquy with Administration officials on impoundment. Ervin typically tried to preempt the strict constitutional position. The Constitution’s framers, he insisted, intended that the President execute
“all laws” duly passed by Congress, “irrespective of any personal, political, or philosophical views he might have.” Ervin denied that the President had any discretionary authority as to what laws would or would not be executed. “Yet,” he said, “by using the impoundment technique, the President is able to do just that.”
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The hearings curiously enhanced the Administration’s position. First, Office of Management and Budget Director Caspar Weinberger effectively undermined Rehnquist’s narrow construction and insisted that the President could impound funds to reconcile conflicting congressional goals—for example, impoundment enabled the President to enforce the national-debt limitation law. Weinberger had his own view of strict construction to checkmate Ervin. Impoundment, he said, would “insure that overall the will of Congress is maintained.” Ervin responded with a bill requiring the reporting of all impoundments. It narrowly passed the Senate but died in the House. The Administration skirted the constitutional issues and lobbied against the Ervin bill on the grounds that it would substantially increase the workload of the Office of Management and Budget.
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Congressional inertia on impoundment amounted to benign acquiescence, which in turn emboldened the Administration to expand impoundment actions. Cost-cutting activities most often involved programs that the White House wanted eliminated and replaced with state initiatives financed by revenue-sharing measures. Altogether, Nixon impounded more than $18 billion in his first term.
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Unlike the impoundments of his predecessors, none of his involved defense expenditures; the impounded funds consistently affected pet pork-barrel projects and traditional liberal causes. Impoundment became an instrument serving preferred presidential policies, policies that aided fiscal restraint and at the same time frustrated congressional wishes.

On the eve of the Administration’s thumping electoral approval in late 1972, the President offered his most powerful challenge. On October 18, Congress had overridden the President’s veto of new amendments to the Federal Water Pollution Control Act, one of the most comprehensive and expensive environmental laws in American history. The measure clearly was popular, and the veto was overridden 247–23 in the House and 52–12 in the Senate. The legislation set new standards for water-quality control and authorized over $18 billion in grants for the states to construct new waste-treatment plants. When the President vetoed the bill, he announced that if Congress overrode his action, he still would refuse to spend the appropriated money. In his veto message of October 17, Nixon threw down the gauntlet: “I have nailed my colors to the mast on this issue; the political winds can blow where they may.” The day after, Nixon and Ehrlichman agreed that the “solution to pollution is not dilution of the dollar.” Nixon insisted that the act contained discretionary powers for spending and that he meant to use them. On November 22, Nixon acted true to his word and directed
Environmental Protection Agency Administrator William Ruckelshaus not to spend the appropriated funds.

Again, Congress responded with hearings. This time, a joint
ad hoc
subcommittee of the Judiciary and Government Operations committees met to consider impoundment. The tension between the executive and legislative branches on this issue had sharpened dramatically since the previous hearings in 1971. Ervin was more indignant; perhaps his growing involvement with a Senate resolution to provide hearings into the financing of the 1972 election campaign heightened his irritation. The Administration responded with a renewed confidence in the President’s constitutional powers. Deputy Attorney General Joseph T. Sneed repudiated Rehnquist’s earlier narrow view and claimed a broad constitutional mandate for impoundment of funds by the President. Any restriction on impoundment, Sneed testified, would deprive the President “of a substantial portion of the executive power vested in him by the Constitution.” Sneed also flatly rejected the Rehnquist memorandum of 1969 as “far too restrictive” of executive power as conferred by the Constitution.
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Nixon himself acknowledged the problem as one of public image rather than of constitutionalism. He told John Ehrlichman that they were “cold, efficient, good managers.” He said he would provide compassion and care for the hungry and poor, but yet he opposed the passion for spending.
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Impoundment, for him, was good management and gave him the high ground of responsible fiscal policy. Then, too, impoundment left his opponents isolated and scattered, anguished when their pet programs were affected but silent and acquiescent at other times. Sam Ervin’s defense of constitutional niceties offered a rare outburst of principled concern.

The President’s challenge to the new pollution controls introduced a new wrinkle to what had been a kind of stylized game between the executive and legislative branches, a game that had been confined to the politics of defense spending. Clearly, the constitutional process had run its prescribed course: Congress had passed a bill; the President had vetoed it; and Congress had overridden the veto. The bill was law, even without a presidential signature. The President, however, had no interest in “faithfully executing” it.

During the summer of 1974, the House Judiciary Committee considered whether the President’s impoundment activities constituted grounds for impeachment. Committee staff lawyers admitted that the historical record on impoundment offered a certain basis in precedent for Nixon’s actions. Furthermore, they conceded that the President’s position could be rationally deduced from both constitutional powers and specific statutes. Perhaps, the staff report stated, an “unjustified, sustained and deliberate refusal” by the President to execute spending statutes might be cause for impeachment, but not every temporary “abrasion … need lead to the impeachment of a President.”
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What went unacknowledged was the historical fact that Congress traditionally had acquiesced in particular uses of impoundment and indeed had found the device useful for its own policy purposes. Still, the fact that impoundment had risen to the respectability of being considered grounds for impeachment measured the furies Richard Nixon aroused in Congress.

Since Theodore Roosevelt, presidents regularly have promoted plans to reorganize the executive branch. Franklin D. Roosevelt’s elaborate Executive Reorganization Plan in 1938 marked a significant breakthrough in the modern organization of the presidency, and each of his successors expended some effort in this area. Harry Truman, hoping to create a bipartisan consensus, named former President Herbert Hoover to direct elaborate studies of executive operations and make recommendations, many of which were adopted. At that time, of course, the sprawl and size of executive operations were relatively new and hence more tractable. All presidential plans for reorganizations were motivated in part by a desire for increased administrative efficiency, as well as by a desire to fulfill presidential political and personal ambitions.

In Richard Nixon’s case, the struggle to centralize executive-branch decision making in the White House clearly highlighted his reorganization proposals. Nixon made it “too apparent that reorganization was about power.” The consequent political embarrassments of his Administration, centering as they did on the abuse of power, ultimately made Nixon’s “reorganization planning itself a suspicious enterprise.”
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However laudable their goals, Nixon’s plans not only appeared to enhance his own power, but did so at the expense of congressional prerogatives and the vested interests of Congress’s bureaucratic constituents.

Early in 1969 Nixon asked Congress to renew presidential authority for proposing reorganization schemes, and Congress promptly complied. The President appointed an advisory commission headed by Roy Ash, president of a prominent corporate conglomerate and a defense contractor. In its first report, the commission focused on overall management responsibility and suggested a need for new organizational arrangements in the President’s own office.

The task of centralizing authority was not easy. Forty years earlier, Herbert Hoover had recognized the roadblocks: any reorganization proposal, he warned, “enlivens opposition from every official whose authority may be curtailed or who fears his position is imperiled by such a result; [and] of bureaus and departments which wish to maintain their authority and activities.”
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The barriers had not fallen; if anything, they had become more formidable.

The evidence of Nixon’s commitment to executive-branch reorganization
is compelling. William Safire noted the President’s frustrated response to a memo telling him that a particular proposal could never work its way through the bureaucratic maze: “govt doesn’t work,” the President wrote. “We’re going to reorganize the government come hell or high water,” he told Nelson Rockefeller in 1971. But Leonard Garment recognized the dangers of making a “lunge at the private parts … of all the different establishments in Washington.” And there was ambivalence on the issue in the White House itself. Three months later, as the President’s staff was engaged in one of its periodic assessments of how best to sell the President to the public, an aide remarked that “the public could care less” about reorganization. The aide recommended leaving the subject to one specialist, “but not one minute of Presidential time ought to be put against it. Unless we want to make it
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issue, then the President will have to spend all his time on it.” Haldeman pithily wrote in the margin: “Never!” Nixon, of course, was no stranger to political realities. In early 1971, he told his Cabinet that his reorganization proposals could not get very far “because [of] too many vested interests. Vested interests will be stronger, in a sense, than we are.”
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In 1970, the Ash Commission presented a reorganization plan which replaced the fifty-year-old Bureau of the Budget with the Office of Management and Budget (OMB) and created the Domestic Council. The OMB emphasized newly created management and supervisory roles and established the agency as the President’s principal arm for managerial functions. The plan transferred functions previously exercised by the Budget Bureau and its Director to the President, who would delegate them to the OMB Director—and presumably could recall them to himself. The OMB would assist the President in the budget’s preparation and carefully audit its execution, and it was given greater influence on the framing and acceptance of legislative or administrative actions. The OMB also could evaluate program performances across agency lines and thus carry out an additional mandate to improve interagency cooperation. Predictably, some Cabinet members objected to the new arrangement, seeing the OMB as diluting their influence within their own departments—which, of course, was precisely the point.
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