| In part, this is a necessity. Imagine how difficult it would be to function if the President had to make sure every last penny appropriated by Congress were spent. Imagine nameless bureaucrats running out to buy cartons of paperclips at the last minute to make sure they met their obligation to spend every last cent appropriated. But that view of the power sees the Executive as having some fractional part of the appropriation after carrying out the intention of the spending.
It also allows for greater efficiency. Suppose the legislature estimates that we will need fifty thousand tons of salt and the going rate for salt will be $100 per ton - but the actual price is $40 per ton. Does the Executive keep buying salt because there is money left or do they get the fifty thousand tons and save the rest?
But what Gov. Christie is doing is claiming that he can unilaterally change governmental policy simply by refusing to spend funds. It is based on the concept of the unitary executive. It means that the Executive has complete control of the bureaucracy, including the prerogative to simply not spend money deliberately set aside for a purpose with which the Governor disagrees.
I this, Adam might be closer to the truth than he thinks. Nixon didn't use the power of impoundment as described above. He used it to control budget expenditures and to control governmental policy (sound familiar?). Nixon tried to trim roughly 20 percent of controllable expenditures simply by refusing to spend the money. Then he began refusing to spend money on policies he didn't like.
First, there was the Congressional Budget and Impoundment Control Act of 1974. This stated that the President must submit a request to Congress to rescind a funding provision if he does not want the money spent for that cause. If Congress does not approve the request within 45 days; then it is refused automatically and the President must release the funds.
Second, it resulted in Train v. City of New York. The short version of this case was that Nixon didn't want to spend $6 billion in grants to states for water pollution control and abatement. SCOTUS, however, stated that the President could disagree with the allotment before he signed the bill, but once signed, he was obligated to spend it.
This led, ultimately, to the passage of the 1995 Legislative Line Item Veto Act. This did not actually let the President alter a bill before him, as the name would imply. But it did let the President refuse to spend any line of appropriation. All he had to do was notify Congress and the rescission would go into effect in 30 days, unless Congress acted to the contrary. However, the President could veto the Congressional action, subject to normal veto override.
This led directly to Clinton v. City of New York, in which the SCOTUS declared the Act invalid because it violated the Presentment Clause because it did not follow the procedure outlined by the Constitution for the enactment of a statute. Justice Kennedy further argued that the Act violated the separation of powers and threatened individual liberty by giving the President unparalleled powers to help or hurt specific groups of taxpayers.
While this is informative, it may not apply directly to the New Jersey Governor. After all, the NJ Governor does have some ability to alter lines of appropriations bills that sit before him. However, that power is given to the Governor before he signs the bill, and it requires that the state legislature vote on the changes. Once a bill is signed into law, it is just that...a law. And not even the Governor is above the law of the state.
I have to add here that I am no expert in New Jersey law, and if any state precedent has been set; then it would control the proceedings that are sure to follow. But Christie, as Executive, can order his underlings not to disburse the funds. They will obey, and numerous lawsuits will result. These will likely be combined, or held until whichever goes first is decided. If I read the current composition of the Court rightly, I think they will ultimately rule against Christie and order him to release the funds. However...
It is possible that the legal proceedings will trod along until after the end of the fiscal year. In which case, the result will be moot as the money will not have been spent in the year appropriated. The Court would then be free to issue a toothless verdict, telling the Governor that he shouldn't have done that, but leaving the injured parties with no way to get their money back in time when they needed it.
In the meantime, everyone is going to have to deal with the cuts that Christie is making. As I often tell my students, government can do whatever it wants, until the Court tells them they have to stop. Even then, it can be dicey if the government is really intent on doing something. As my role model, Mel Brooks, used to say, "It's good to be the King."
Presumably, it's good to be the Governor, too. |
