able to impound at all, or should be permitted to impound, but with various congressional circumscriptions of his power to do so. It does not appear from the voluminous history of the ICA in its entirety that Congress was very much concerned with, let alone determined to achieve, further detail about future Presidential impoundments absent a mechanism for exercising control over them.
In Alaska Airlines the court noted that the statute without the one-House veto would operate as intended. In doing so it distinguished American Federation of Government Employees v. Pierce, 225 U.S. App. D.C. 61, 697 F.2d 303 (D.C. Cir. 1982), an earlier case in which it had found a one-House veto inseverable because severance would have left a legislative result the opposite of that Congress intended.
Severance in the instant case, too, would demolish the congressional control over a species of impoundment that was at its heart.
Indeed, if the Court were to find the one-House veto to be severable from the deferral power itself, not only would it confirm in the President the very power that Congress has never acknowledged him to have at all, it would also enable him to employ it, in effect, as a "line-item veto" (which is, of course, anathema to Congress) by signing an appropriations bill and later "deferring" any and all specific appropriations for agencies or programs he thought undeserving. That neither this nor any President has done so to date is irrelevant; the potential for it is, however, most relevant to a retrospective inquiry into Congress' willingness in 1974 to have accepted an ICA shorn of the one-House veto but in all other respects as it appears today.
Defendants point out that the deferral power can never be the true equivalent of a line-item veto, in that an enactment "vetoed" by the President is permanently canceled, whereas an appropriation "deferred" must be available for obligation before the end of the fiscal year. See 2 U.S.C. § 684(a). The argument ignores the practical realities of the budget process, however, for when the expenditure of funds is deferred for one year, those funds remain available and may be used to offset budgetary requirements for the following fiscal year.
The argument also ignores economic reality as well; the timing of an expenditure may be as or more important to Congress than the total amount spent.
Plaintiffs postulate two further anomalous, although still hypothetical, consequences of a President uninhibited by the prospect of a one-House veto in his exercise of the deferral authority given him by the ICA. Having no other mechanism at hand, the only way Congress can reverse a Presidential deferral is by enacting new legislation ordering the President to spend the money (an alternative, by the way, Congress specifically considered and discarded when it passed the ICA).
If the new legislation were then vetoed by a President determined to prevail, Congress would have to muster a two-thirds majority of each House to vote to override. Plaintiffs also suggest that unconstrained deferral authority pursuant to the ICA would, in effect, nullify Congress' amendment to the Anti-Deficiency Act.
The amendment limited the President's ability to "apportion" funds to three carefully-delineated situations in an effort to remove any colorable basis under the Anti-Deficiency Act for his impoundment of appropriated funds in the guise of an "apportionment." To find the President now unchecked in his deferral power by the one-House veto would be to permit him to apportion funds in the guise of a "deferral."
The Court concludes that the legislative history of the ICA demonstrates that Congress would not have conceded any deferral authority to the President at all in the absence of the one-House veto provision. It can be said with conviction that Congress would have preferred no statute to one without the one-House veto provision, for with no statute at all, the President would be remitted to such pre-ICA authority as he might have had for particular deferrals which, in Congress' view (and that of most of the courts having passed upon it) was not much.
Having found it evident that Congress would not have enacted those provisions of the ICA which are within its power independently of that which is not, under Chadha and Alaska Airlines this Court must now look to whether the ICA is presently fully operable as a law without the one-House veto provision. In support of their contention that the ICA is a law entire unto itself sans the one-House veto, defendants point to the way in which Congress and the President have operated under the ICA since Chadha.16 But, the fact that both Houses of Congress have either acquiesced in, or passed legislation to overturn, other Presidential deferrals in the three years since Chadha does not establish that the law is operable. The ICA does not provide the mechanism for the enactment of legislation; the Constitution does. That Congress has done so proves not that the statute is operable, but that Congress has acted outside the confines of the statute and in the exercise of its Article I constitutional powers. The Court finds that the ICA is not fully operable as a statute without the one-House veto provision. The modus vivendi which has evolved between the President and Congress in the years intervening, ostensibly pursuant to the ICA, could in fact have existed in the absence of any statute at all.
Defendants assert that if this Court finds that the one-House veto is inseverable, it must then strike all other impoundment-related provisions of Title X of the ICA, including the amendment to the Anti-Deficiency Act, and thereby return the parties to the status quo ante the ICA's enactment in 1974. They argue that to strike only the deferral provision would be to destroy the symmetry of the constitutional accommodation the Act represented between the Executive and Legislative Branches with respect to the whole subject of Presidential impoundments.
The Court of Appeals for this circuit, however, has instructed that courts must "save as much of the statute as we can, consistent with the underlying legislative intent," Alaska Airlines, Inc. v. Donovan, 766 F.2d at 1560 (footnote omitted), and the excision of more than the deferral authority would constitute unnecessary mutilation. The paramount legislative objective of the ICA, i.e., of controlling impoundments, is best implemented by leaving rescission authority and the Anti-Deficiency Act as written, and as the President and Congress agreed upon them originally.
Finally, defendants contend that a finding that the one-House veto provision is inseverable will not provide the plaintiffs the relief they seek, viz., the present availability to them of the total appropriations for obligation, because the statutes pursuant to which the appropriations were made do not mandate the expenditure of funds now and, thus, the President may withhold the funds independently of the ICA. See UAW v. Donovan, 241 U.S. App. D.C. 122, 746 F.2d 855 (D.C. Cir. 1984). But the President acted pursuant to the ICA in deferring the budget authority at issue here. He did not assert an independent basis for his deferrals, see H. Doc. 99-161; 51 Fed. Reg. 5829 (Feb. 18, 1986), and the Court can decide only the matters presented to it by the actual case or controversy before it. The status of the President's authority to impound funds independently of the ICA will once again have to await yet another case.
For the foregoing reasons, it is, this 16th day of May, 1986,
ORDERED, that plaintiffs' motions for a preliminary injunction are denied as moot; and it is
FURTHER ORDERED, that defendants' motion for summary judgment is denied; and it is
FURTHER ORDERED, that plaintiffs' motions for summary judgment are granted; and it is
FURTHER ORDERED, that the one-House veto provision is hereby declared inseverable from the remainder of section 1013 of Pub. Law 93-344, codified at 2 U.S.C. § 684 (1982), and section 1013 is therefore set aside in its entirety; and it is
FURTHER ORDERED, that defendants are ordered to make available for obligation the full amount of funds Congress appropriated for (a) the Section 8 Housing Assistance Payments Program, 42 U.S.C. § 1437f; (b) the Section 202 Program of the Housing Act of 1959, 12 U.S.C. § 1701q; (c) Title I of the Community Development Block Grant Program of the Housing and Community Development Act of 1974, 42 U.S.C. § 5301; and (d) the Section 312 Program of the Housing Act of 1964, 42 U.S.C. § 1452b, which defendants have withheld pursuant to the deferral messages sent by the President to the Congress; and it is
FURTHER ORDERED, sua sponte, that the injunction hereinabove entered is stayed until completion of appellate proceedings herein.