February 4, 1997

No Impoundment Authority

Just One New Requirement on the President. S.J.Res. 1, the bipartisan, bicameral Balanced Budget Constitutional Amendment imposes but one new responsibility on the President of the United States: Section 3 requires him to transmit to Congress "a proposed budget . . . in which total outlays do not exceed total receipts." No other responsibility or power or authority is given to the President. S.J.Res. 1 does not give him any authority to impound funds.

Congress "Shall Enforce" the Amendment. On the other hand, S.J.Res. 1 gives Congress explicit authority to enforce the terms of the amendment. Indeed, the amendment commands Congress to act. Section 6 of the proposed amendment reads, "The Congress shall enforce and implement this article by appropriate legislation, which may rely on estimates of outlays and receipts."

Note the use of the word "shall":

• One unabridged dictionary says that "shall" is a verb that is "used in laws, regulations, or directives to express what is mandatory."
• A manual on legislative drafting says, "When requiring that some action be taken, use 'shall' rather than 'is directed to' or 'must'; and when permitting some action to be taken, or granting a right, privilege, power, or authority, use 'may'. . . ."
• One also may look to the Ten Commandments, eight of which use the word "shall"; these are not the Ten Suggestions. For example, the ninth commandment uses the word "shall" typically; it says, "You shall not give false testimony against your neighbor". (A more provincial translation might read, "You shall not speak falsely against your neighbor, or your neighbor's constitutional amendment.")

Congressional "Must's" Versus Congressional "May's". The use of the phrase "shall enforce and implement" in S.J.Res. 1 should be compared with similar but fundamentally different language in constitutional Amendments 13, 14, 15, 19, 23, 24, and 26. The language in those amendments is fairly standardized and usually reads, "The Congress shall have power to enforce this article by appropriate legislation." The language in these seven amendments means that Congress has been given governmental power which it may exercise; the language of S.J.Res. 1 ("The Congress shall enforce and implement. . . .") means that Congress has power which it must exercise.

Congressional Power and Prerogatives. Congressional power to "enforce and implement" may be exercised in various ways. Congress may use sequestration, rescission, a contingency fund, or some other mechanism.

The President and the Executive Power. Under the Constitution, the executive power is vested in a President (Article II, 1) who "shall take care that the laws be faithfully executed" (Art. II, 3). The President will enforce and implement the laws that Congress enacts. He is not given unilateral authority to enforce and implement the balanced budget amendment.

President's Duty to Enforce the Law. S.J.Res. 1 does not give the President new fiscal powers, but the Constitution does impose on him a duty to enforce the budget laws that Congress enacts. In a recent "Dear Colleague" letter, Senator Hatch pointed out that, at least since Kendall v. United States ex rel. Stokes, 37 U.S. 524 (1838), the President's constitutional duty to see that the laws are faithfully executed has (1) required him to enforce the mandatory terms of a budget law and (2) prohibited him from resorting to some nonexistent impoundment power. The Kendall case was given new vitality in the 1970s, when lower federal courts rejected President Nixon's attempts to impound funds where Congress had not given him such power. See, e.g., State Highway Commission v. Volpe, 479 F.2d 1099 (8th Cir. 1973) (statutory interpretation). BBCA does not overturn Kendall or its progeny.

President's Current Powers Not Added To. The President recently has been given new budgetary powers under the Line Item Veto Act, Pub. L. 104-130, 110 Stat. 1200 (April 9, 1996). This is the only explicit, delegated budgetary power that the President now possesses. Unless Congress gives the President additional powers, this limited line item veto is the only end-of-the-process power he has. Of course, along the way he can negotiate and persuade, threaten a veto or make one, submit a balanced budget, and so on. The President of the United States is not helpless in the budgetary process, but the Balanced Budget Constitutional Amendment does not give him new powers.

[Notes: The dictionary that is quoted is Webster's Third New International. The drafting book that is quoted is Lawrence E. Filson, The Legislative Drafter's Desk Reference 22.2 (1992). The Bible verse that is quoted is from the New International Version, Exodus 20:16. Senator Hatch's "Dear Colleague" letter is dated January 28, 1997.]