[Congressional Record Volume 166, Number 19 (Wednesday, January 29, 2020)]
[Extensions of Remarks]
[Pages E101-E105]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  WHY IMPOUNDMENT CONTROL ACT MATTERS

                                 ______
                                 

                               speech of

                          HON. JOHN A. YARMUTH

                              of kentucky

                    in the house of representatives

                       Tuesday, January 28, 2020

  Mr. YARMUTH. Madam Speaker, I include in the Record the December 10, 
2018 Government Accountability Office's decision confirming Congress' 
power of the purse by concluding that, while the Impoundment Control

[[Page E102]]

Act does, under limited circumstances, allow the President to withhold 
money for up to 45 congressional session days, the President cannot 
freeze the money for so long that it can no longer be used. I am 
submitting this in the Record to help inform the public of the 
Administration's systematic disregard of Congress' constitutional 
authority, separation of powers principles, and the Impoundment Control 
Act.
                                              GAO, U.S. Government


                                        Accountability Office,

                                                December 10, 2018.
     Subject: Impoundment Control Act--Withholding of Funds 
         through Their Date of Expiration
     Hon. Steve Womack,
     Chairman, Committee on the Budget,
     House of Representatives.
     Hon. John Yarmuth,
     Ranking Member, Committee on the Budget,
     House of Representatives.
       This responds to your request for our legal opinion 
     regarding the scope of the authority provided under the 
     Impoundment Control Act of 1974 (ICA) to withhold budget 
     authority from obligation pending congressional consideration 
     of a rescission proposal. Pub. L. No. 93-344, title X, 88 
     Stat. 297, 332 (July 12, 1974), amended by Pub. L. No. 100-
     119, title II, Sec. Sec. 206, 207, 101 Stat. 754, 785 (Sept. 
     29, 1987), classified at 2 U.S.C. Sec. Sec. 681-688; Letter 
     from Representative Steve Womack, Chairman, and 
     Representative John Yarmuth, Ranking Member, House Committee 
     on the Budget, to Comptroller General (Oct. 31, 2018). Under 
     limited circumstances, the ICA allows the President to 
     withhold amounts from obligation for up to 45 calendar days 
     of continuous congressional session. See ICA, Sec. 1012(b); 2 
     U.S.C. Sec. 683(b). At issue here is whether the Act allows 
     such a withholding of a fixed-period appropriation scheduled 
     to expire within the prescribed 45-day period to continue 
     through the date on which the funds would expire.
       As discussed below, we conclude that the ICA does not 
     permit the withholding of funds through their date of 
     expiration. The statutory text and legislative history of the 
     ICA, Supreme Court case law, and the overarching 
     constitutional framework of the legislative and executive 
     powers provide no basis to interpret the ICA as a mechanism 
     by which the President may unilaterally abridge the enacted 
     period of availability of a fixed-period appropriation. The 
     Constitution vests in Congress the power of the purse, and 
     Congress did not cede this important power through the ICA. 
     Instead, the terms of the ICA are strictly limited. The ICA 
     permits only the temporary withholding of budget authority 
     and provides that unless Congress rescinds the amounts at 
     issue, they must be made available for obligation. The 
     President cannot rely on the authority in the ICA to withhold 
     amounts from obligation, while simultaneously disregarding 
     the ICA's limitations. In accordance with our regular 
     practice, we contacted the Office of Management and Budget 
     (OMB) for its legal views on this matter. GAO, Procedures and 
     Practices for Legal Decisions and Opinions, GAO-06-1064SP 
     (Washington, D.C.: Sept. 2006), available at www.gao.gov/
products/GAO-06-1064SP; Letter from General Counsel, GAO, to 
     General Counsel, OMB (Nov. 1, 2018). In response, OMB 
     provided its legal analysis. Letter from General Counsel, 
     OMB, to General Counsel, GAO (Nov. 16, 2018) (Response 
     Letter).


                               background

       The Constitution specifically vests Congress with the power 
     of the purse, providing that ``No Money shall be drawn from 
     the Treasury, but in Consequence of Appropriations made by 
     Law.'' U.S. Const., art. I, Sec. 9, cl. 7. The Constitution 
     also vests all legislative powers in Congress and sets forth 
     the procedures of bicameralism and presentment, through which 
     the President may accept or veto a bill passed by both houses 
     of Congress and Congress may subsequently override a 
     presidential veto. Id., art. I, Sec. 7, cl. 2, 3. The 
     procedures of bicameralism and presentment form the only 
     mechanism for enacting federal law. See INS v. Chadha, 462 
     U.S. 919, 951 (1983) (``[T]he prescription for legislative 
     action in Art. I, Sec. Sec. 1, 7, represents the Framers' 
     decision that the legislative power of the Federal Government 
     be exercised in accord with a single, finely wrought and 
     exhaustively considered, procedure.''). The Constitution also 
     vests Congress with power to make all laws ``necessary and 
     proper'' to implement its constitutional authorities.
       U.S. Const., art. I, Sec. 8, cl. 18. To that end, Congress 
     has enacted several permanent statutes that govern the use of 
     appropriations, including the Antideficiency Act, which 
     provides that agencies may incur obligations or make 
     expenditures only when sufficient amounts are available in an 
     appropriation.
       31 U.S.C. Sec. 1341. Because agencies may incur obligations 
     only in accordance with appropriations made by law, and 
     because the Constitution vests all lawmaking power in 
     Congress, only appropriations duly enacted through the 
     constitutional processes of bicameralism and presentment 
     authorize agencies to incur obligations or make expenditures. 
     The Presentment Clauses allow the President to veto an 
     appropriations bill before it becomes law. See Art. I, 
     Sec. 7, cl. 2, 3. However, the Constitution provides no 
     mechanism for the President to invalidate a duly enacted law. 
     Instead, the Constitution requires the President to ``take 
     Care that the Laws be faithfully executed.'' U.S. Const., 
     art. II, Sec. 3; see also Clinton v. City of New York, 524 
     U.S. 417, 438 (1998) (the Constitution does not authorize the 
     President ``to enact, to amend, or to repeal statutes'').
       An appropriation is a law like any other; therefore, unless 
     Congress has enacted a law providing otherwise, the President 
     must take care to ensure that appropriations are prudently 
     obligated during their period of availability. See B-329092, 
     Dec. 12, 2017 (noting that the ICA operates on the premise 
     that the President is required to obligate funds appropriated 
     by Congress, unless otherwise authorized to withhold). An 
     ``impoundment'' is any action or inaction by an officer or 
     employee of the federal government that precludes obligation 
     or expenditure of budget authority. GAO, A Glossary of Terms 
     Used in the Federal Budget Process, GAO-05-734SP (Washington, 
     D.C.: Sept. 2005), at 61. The President has no unilateral 
     authority to withhold funds from obligation. See B-135564, 
     July 26, 1973. The ICA, however, allows the President to 
     impound budget authority in limited circumstances. The 
     President may temporarily withhold funds from obligation--but 
     not beyond the end of the fiscal year--by proposing a 
     ``deferral.'' ICA, Sec. 1013; 2 U.S.C. Sec. 684. The 
     President may also seek the permanent cancellation of funds 
     for fiscal policy or other reasons, including the termination 
     of programs for which Congress has provided budget authority, 
     by proposing a ``rescission.'' ICA, Sec. 1012; 2 U.S.C. 
     Sec. 683. When the President transmits a special message 
     proposing a rescission of budget authority (a rescission 
     proposal) in accordance with the ICA, amounts proposed for 
     rescission may be impounded (that is, withheld from 
     obligation) for a period of 45 calendar days of continuous 
     congressional session. See ICA, Sec. 1012; 2 U.S.C. 
     Sec. 683. The Act states that such amounts ``shall be made 
     available for obligation unless, within the prescribed 45-
     day period, the Congress has completed action on a 
     rescission bill rescinding all or part of the amount 
     proposed to be rescinded or that is to be reserved.'' ICA, 
     Sec. 1012(b); 2 U.S.C. Sec. 683(b). Section 1017 of the 
     ICA establishes expedited procedures to facilitate 
     Congress's consideration of a rescission bill during the 
     45-day period. ICA, Sec. 1017; 2 U.S.C. Sec. 688. This 
     opinion focuses on the withholding of amounts pursuant to 
     a rescission proposal.


                               discussion

       The ICA authorizes the President to withhold funds from 
     obligation under limited circumstances. At issue here is 
     whether the ICA allows the withholding of a fixed-period 
     appropriation, pursuant to the President's transmission of a 
     rescission proposal, to continue through the date on which 
     the funds would expire.


                 powers granted by the ica are limited

       To interpret the ICA, we begin with the text of the statute 
     and give ordinary meaning to statutory terms, unless 
     otherwise defined. Sebelius v. Cloer, 569 U.S. 369,376 
     (2013); BP America Production Co. v. Burton, 549 U.S. 84, 91 
     (2006). Section 1012(b) states that funds proposed to be 
     rescinded ``shall be made available for obligation unless, 
     within the prescribed 45-day period, the Congress has 
     completed action on a rescission bill rescinding all or part 
     of the amount proposed to be rescinded . . . .'' Use of the 
     conjunction ``unless'' denotes that the clause that follows 
     provides an exception to the rule that precedes the term. See 
     American Heritage Dictionary (4th ed. 2009) (defining 
     ``unless'' as ``except on the condition that'' and ``except 
     under the circumstances that''). Further, ``shall,'' in the 
     context of a statute, generally means ``must.'' Ballentine's 
     Law Dictionary (3d ed. 2010) (defining shall as ``the 
     equivalent of `must,' where appearing in a statute''). See 
     also Western Minnesota Municipal Power Agency v. FERC, 806 
     F.3d. 588, 592 (D.C. Cir. 2015) (``shall give preference'' 
     was a mandatory directive to the commission); Drummond Coal 
     Co. v. Watt, 735 F.2d 469, 473 (11th Cir. 1984) (noting `` 
     `shall' is a mandatory, not permissive form''). The phrase 
     ``shall be made available'' thus constitutes a mandatory 
     directive that funds proposed for rescission be made 
     available for obligation, and the term ``unless'' denotes the 
     single exception to this requirement.
       The text of section 1012(b) then provides that the only 
     mechanism that permits budget authority to be permanently 
     withheld is Congress's completion of action on a rescission 
     bill within the 45-day period.
       An appropriation is available to incur new obligations only 
     during its period of availability, which, for a fixed-period 
     appropriation, is a finite period of time. See 31 U.S.C. 
     Sec. 1551(a)(3). See also 31 U.S.C. Sec. Sec. 1501, 1502 
     (obligation of a fixed-period appropriation must correspond 
     to the bona fide needs of the appropriation's period of 
     availability and must be executed before the end of such 
     period). For example, an agency may use a one-year 
     appropriation to obligate the government for expenses 
     properly chargeable to that year, or may use a multiple-year 
     appropriation to obligate the government for expenses 
     properly chargeable to that multiple-year period. But the 
     government may not incur obligations against such 
     appropriations after the relevant time frame, as the budget 
     authority's period of availability would have ended.
       Immediately after the period of availability for obligation 
     of a fixed-period appropriation ends, the budget authority is 
     ``expired'' and no longer available to incur new obligations. 
     Glossary, at 23 (defining expired budget authority). See also 
     18 Comp. Gen. 969 (1939). An expired account is only 
     available to record, to adjust, and to liquidate obligations 
     properly chargeable to that account

[[Page E103]]

     during the account's period of availability. 31 U.S.C. 
     Sec. 1553(a). Notably, the permissible uses of an expired 
     appropriation relate back to obligations incurred during the 
     period of availability of the funds and do not constitute new 
     obligations themselves.
       The plain language of section 1012(b) provides that absent 
     Congress's completion of action on a rescission bill 
     rescinding all or part of amounts proposed to be rescinded 
     within the prescribed 45-day period, such amounts must be 
     made available for obligation. The authority to withhold is 
     not severable from the provision's requirement regarding the 
     release of the funds. Indeed, the provision permits a 
     temporary withholding of budget authority, and otherwise 
     requires its availability for obligation in all other 
     circumstances. As budget authority is available to incur 
     obligations only during its period of availability, implicit 
     in the ICA's requirement under section 1012(b) that budget 
     authority be ``made available for obligation'' is that such 
     budget authority must not be expired. Because a fixed-period 
     appropriation is current only for a definite period of time, 
     section 1012(b) of the ICA requires that if Congress does not 
     enact a rescission bill, the appropriation must be made 
     available for obligation during that finite period. After 
     this finite period has ended, the appropriation is expired 
     and cannot be available for new obligations.
       Consequently, the ICA does not permit budget authority 
     proposed for rescission to be withheld until its expiration 
     simply because the 45-day period has not yet elapsed. A 
     withholding of this nature would be an aversion both to the 
     constitutional process for enacting federal law and to 
     Congress's constitutional power of the purse, for the 
     President would preclude the obligation of budget authority 
     Congress has already enacted and did not rescind. For 
     example, consider a situation where fiscal year budget 
     authority is withheld pursuant to a special message submitted 
     less than 45 days before the end of the fiscal year and 
     where, upon conclusion of the 45-day period, Congress has not 
     completed action on a corresponding rescission bill. An 
     interpretation of section 1012(b) that would permit the 
     withholding of such budget authority for the duration of the 
     45-day period would result in the expiration of the funds 
     during that period. The expired amounts then could not be 
     made available for obligation despite Congress not having 
     completed action on a bill rescinding the amounts, as expired 
     appropriations are not available for obligation. The ICA 
     represents an agreement between the legislative and executive 
     branches, whereby the President may withhold budget authority 
     for a limited period during which Congress may consider the 
     corresponding proposal to rescind the amounts using expedited 
     procedures. The expiration of these amounts would frustrate 
     the design of the ICA, as it would contravene the plain 
     meaning of section 1012(b), which requires that amounts not 
     rescinded during this period of consideration be ``made 
     available for obligation.''
       Regardless of whether the 45-day period for congressional 
     consideration provided in the ICA approaches or spans the 
     date on which funds would expire, section 1012(b) requires 
     that budget authority be made available in sufficient time to 
     be prudently obligated. The amount of time required for 
     prudent obligation will vary from one program to another. In 
     some programs, prudent obligation may require hours or days, 
     while others may require weeks or months. We have previously 
     signaled that the consequence of an unenacted rescission 
     proposal should be the full and prudent obligation of the 
     budget authority. B-115398, Aug. 27, 1976. In 1976, the 
     President submitted a special message for which the 45-day 
     period would end on September 29, 1976, leaving one day to 
     obligate appropriations that were withheld. Id. We noted this 
     one-day period could be insufficient to prudently obligate 
     the funds. Id. We found the timing of the proposal 
     ``particularly troublesome'' as it could ``operate to deny to 
     the Congress the expected consequence of its rejecting a 
     rescission proposal--the full and prudent use of the budget 
     authority.'' Id.
       We have drawn similar conclusions concerning deferrals 
     under the ICA. In such cases we have noted that deferred 
     funds must be released in sufficient time to allow them to be 
     prudently obligated. See B-216664, Apr. 12, 1985 (emphasizing 
     that deferral, under the President's sixth special message 
     for fiscal year 1985, of amounts scheduled to expire should 
     not extend beyond the point at which the funds could be 
     prudently obligated). See also 54 Comp. Gen. 453 (1974) 
     (recognizing that a deferral of budget authority that ``could 
     be expected with reasonable certainty to lapse before [it] 
     could be obligated, or would have to be obligated imprudently 
     to avoid that consequence'' constitutes a de facto 
     rescission, and must be reclassified as a rescission 
     proposal).
       The legislative history of the ICA supports this 
     construction of section 1012(b). During consideration of the 
     report of the committee of conference on H.R. 7130, 93rd 
     Cong. (1974), which was ultimately enacted into law as the 
     ICA, members recognized that affirmative congressional action 
     is required for a rescission of funds under the language of 
     section 1012. Senator Sam J. Ervin, Jr., the sponsor of a 
     related bill, stated regarding section 1012:
       ``[The purpose) is to provide an orderly method by which 
     differences of opinion may be reconciled between the 
     President and Congress in respect to the amounts of 
     appropriations sought . . . The recommendation of the 
     President that an appropriation be eliminated or reduced in 
     and of itself would have no legal effect whatsoever. In other 
     words, for it to become effective, both Houses of Congress, 
     by a majority vote, would have to take action either 
     eliminating the appropriation or reducing the appropriation . 
     . . I might say that the 45-day provision is placed in the 
     bill for the purpose of spurring speedy congressional action, 
     but with recognition of the fact that Congress cannot deprive 
     itself of any other power it has under the Constitution.''
       120 Cong. Rec. 20,473 (June 21, 1974) (statement of Sen. 
     Ervin) (emphasis added). As one member stated succinctly when 
     discussing similar language: ``the impoundment fails unless 
     Congress acts affirmatively.'' 119 Cong. Rec. 15,236 (May 10, 
     1973) (statement of Sen. Roth) (debating S. 373, which would 
     have required an impoundment to cease within 60 days unless 
     it had been ratified by Congress). See also H.R. Conf. Rep. 
     No. 93-1101, at 76 (1974); S. Conf. Rep. No. 93-924, at 76 
     (1974) (``Unless both Houses of Congress complete action on a 
     rescission bill within 45 days, the budget authority shall be 
     made available for obligation.'').
       Congress considered bill language under which an 
     impoundment would have continued indefinitely unless Congress 
     took specific action to affirmatively disapprove of the 
     impoundment. H.R. 8480, 93rd Cong. (1973) (providing that an 
     impoundment ``shall cease if within [60] calendar days of 
     continuous session after the date on which the message is 
     received by the Congress the specific impoundment shall have 
     been disapproved by either House . . .'' (emphasis added)). 
     However, Congress did not enact such language. Instead, 
     Congress enacted legislation under which an impoundment 
     becomes permanent only if Congress enacts appropriate 
     legislation through the processes of bicameralism and 
     presentment.
       Under the Constitution, the President must take care to 
     execute the appropriations that Congress has enacted. Though 
     the ICA permits the President to withhold amounts from 
     obligation under limited circumstances, the amounts are 
     permanently rescinded only if Congress takes affirmative 
     legislative action through the constitutional processes of 
     bicameralism and presentment. One must read the ICA as a 
     whole. The Act outlines a process, and affords the President 
     limited authority to withhold appropriated amounts while 
     Congress expedites its consideration of the President's 
     legislative proposal to rescind the already enacted 
     appropriations. It would be an abuse of this limited 
     authority and an interference with Congress's constitutional 
     prerogatives if a President were to time the withholding of 
     expiring budget authority to effectively alter the time 
     period that the budget authority is available for obligation 
     from the time period established by Congress in duly enacted 
     appropriations legislation. It would be inimical to the ICA 
     and to its constitutional underpinnings for the executive to 
     avail itself of the withholding authority in the ICA, but to 
     ignore the remainder of the process. See generally B-330376, 
     Nov. 30, 2018 (citing NROC v. Abraham, 355 F.3d 179, 205 (2d 
     Cir. 2004)) (finding that agencies ``cannot have it both 
     ways,'' claiming both the benefit of adhering to a statutory 
     provision, while simultaneously arguing that the requirements 
     of the provision do not apply). Therefore, amounts proposed 
     for rescission must be made available for prudent obligation 
     before the amounts expire, even where the 45-day period for 
     congressional consideration provided in the ICA approaches or 
     spans the date on which funds would expire: the requirement 
     to make amounts available for obligation in this situation 
     prevails over the privilege to temporarily withhold the 
     amounts. OMB asserts that the ICA does not preclude an 
     impoundment from persisting through the date on which 
     amounts would expire. Response Letter, at 2.
       Specifically, OMB relies on the purported silence of 
     section 1012 with regard to the President's ability to 
     propose rescissions under the ICA late in the fiscal year, as 
     compared to the language in section 1013, which governs the 
     deferral of budget authority. Id. In particular, section 1013 
     states that a deferral ``may not be proposed for any period 
     of time extending beyond the end of the fiscal year in which 
     the special message proposing the deferral is transmitted to 
     the House and the Senate[,]'' and also provides that the 
     provisions of the section, which necessarily includes this 
     proscription, do not apply to amounts proposed for rescission 
     under section 1012. ICA, Sec. Sec. 1013(a), (c); 2 U.S.C. 
     Sec. Sec. 684(a), (c). According to OMB, these distinctions 
     demonstrate that section 1012 does not require the President 
     to make withheld budget authority available for obligation 
     before the end of the fiscal year. Response Letter, at 1. 
     Under OMB's rationale, the ICA grants the President authority 
     to withhold funds for the entire 45-day period, even if such 
     withholding would result in the expiration of impounded 
     balances.
       We disagree with OMB's position. As a practical matter, 
     OMB's interpretation of the ICA would grant the President 
     unilateral authority to rescind funds that are near 
     expiration by altering the time period that the budget 
     authority is available for obligation from the time period 
     established in existing law. Suppose the President were to 
     transmit a special message less than 45 days before amounts 
     are due to expire. In OMB's view, an impoundment could 
     continue through the funds' date of expiration--at which 
     point the funds would no longer be available for new 
     obligations. Therefore, fiscal year funds proposed for 
     rescission in a special message late

[[Page E104]]

     in the fiscal year, even if not legally rescinded by the 
     enactment of legislation, would be effectively rescinded if 
     Congress takes no action at all. In OMB's view, only through 
     affirmative legislative action could Congress prevent the 
     rescission of funds that the President proposes for 
     rescission in a special message transmitted close to the date 
     on which the funds would expire. OMB's reading of the ICA 
     would preempt the congressional process by which the budget 
     authority's period of availability was established, 
     fundamentally ceding Congress's power of the purse to the 
     President.
       This interpretation would contradict the plain meaning of 
     section 1012, which, by its terms, requires that amounts not 
     rescinded through a rescission bill be made available for 
     obligation. As previously discussed, this requirement that 
     amounts be made available for obligation already limits the 
     time frame during which such amounts may be permissibly 
     withheld; there is no need in section 1012 for language that 
     specifically prohibits amounts from being withheld beyond the 
     end of the fiscal year.
       In addition, the legislative history of the ICA indicates 
     that the distinctions between section 1012 and section 1013, 
     on which OMB relies, do not carry the implications that OMB 
     suggests. See 120 Cong. Rec. at 20,473 (statements of Sen. 
     Ervin and Sen. McClellan) (discussing distinction between 
     deferral and rescission proposals). Unlike a rescission 
     proposal, through which the President seeks the permanent 
     cancellation of budget authority and may temporarily withhold 
     amounts pending congressional consideration, the ultimate 
     objective of a deferral proposal is a temporary withholding 
     only. Section 1013 was crafted to govern this temporary 
     withholding of budget authority and, thus, specifies that 
     amounts may not be withheld beyond the end fiscal year. See 
     id. In contrast, section 1012 limits withholding to the 
     prescribed 45-day period, absent Congress's completion of a 
     bill rescinding the amounts proposed for rescission. Neither 
     does section 1013(c), which provides that the provisions of 
     section 1013 do not apply to rescission proposals submitted 
     under section 1012, support OMB's position that there is no 
     restriction on when the President may submit a rescission 
     proposal. Rather, section 1013(c) was intended to clarify 
     that any action that would seek the permanent cancellation of 
     budget authority must be governed by the more stringent 
     provisions of section 1012. See id. (statement of Sen. Ervin) 
     (``Any action or proposal which results in a permanent 
     withholding of budget authority must be proposed under 
     section 1012. Section 1013(c) specifically provides that 
     section 1013 does not apply to cases to which section 1012 
     applies. Only temporary withholding may be proposed under 
     section 1013 . . .'').
       Through the ICA, Congress did not grant the President the 
     extraordinarily broad rescissions authority that OMB asserts. 
     Indeed, the ICA grants the President no authority whatsoever 
     to rescind funds. The Act allows the President to transmit 
     legislative proposals for rescission to Congress, while 
     granting the President authority to withhold the funds for 
     limited periods of time while Congress considers the 
     proposals. Congress considered, and did not enact, language 
     that would have granted the President authority to propose 
     rescissions that would take permanent effect if Congress took 
     no action. Instead, as we discussed above, under the ICA only 
     Congress may rescind budget authority.
       Under the Constitution, Congress enacts laws, and the 
     President must take care to faithfully execute the terms of 
     those laws, including appropriations acts. Within this 
     framework, Congress enacted the ICA, which granted the 
     President strictly circumscribed authority to temporarily 
     withhold funds from obligation. The overarching 
     constitutional framework of the executive and legislative 
     powers, as well as the statutory text and legislative history 
     of the ICA, provide no basis to construe the ICA as a 
     mechanism by which the President may, in effect, unilaterally 
     shorten the availability of budget authority by transmitting 
     strategically-timed special messages. Rather, amounts 
     proposed for rescission must be made available for prudent 
     obligation before the amounts expire, even where the 45-day 
     period for congressional consideration in the ICA approaches 
     or spans the date on which the funds would expire.


                             prior opinions

       We have previously considered situations in which the 
     President transmitted special messages concerning amounts 
     that were near their date of expiration. We have intimated 
     that in such a situation, the President may withhold the 
     budget authority from obligation for the duration of the 45-
     day period, and that Congress must take affirmative action to 
     prevent the withheld funds from expiring. See, e.g., B-
     115398, Dec. 15, 1975. In some instances we have simply noted 
     that funds may expire, without stating whether the funds were 
     properly withheld or reporting that they must be made 
     available for obligation. See, e.g., B-115398, Aug. 27, 1976. 
     See also B-220532, Sept. 19, 1986 (reclassifying deferral as 
     rescission proposal, recognizing potential for funds to 
     expire before being able to be obligated for intended 
     purpose). As we explain below, in light of Supreme Court 
     precedent and subsequent amendments to the ICA, we overrule 
     these prior opinions.
       In the President's second special message for fiscal year 
     1976, submitted on July 26, 1975, he included two rescission 
     proposals of budget authority scheduled to expire on 
     September 30, 1975. B-115398, Aug. 12, 1975. In our review of 
     the special message, we stated that these amounts would lapse 
     nearly a month before expiration of the 45-day period, B-
     115398, Aug. 12, 1975, and, in a subsequent report on the 
     status of funds, confirmed the amounts had in fact lapsed 
     during the 45-day period, B-115398, Dec. 15, 1975. In our 
     report on the status of the funds, we stated that ``having to 
     wait 45 days of continuous session before it can be 
     determined that a proposed rescission has been rejected is a 
     major deficiency of the [ICA].'' B-115398, Dec. 15, 1975. We 
     offered that Congress should have an affirmative means within 
     the Act to address scenarios such as this, by, for example 
     ``changing the Act to allow a rescission resolution as is now 
     allowed for deferrals, or changing the Act to prevent funds 
     from lapsing where the 45-day period has not expired.'' Id. 
     We stated that with respect to the two rescission proposals, 
     ``Congress was unable, under the Act, to reject the 
     rescission in time to prevent the budget authority from 
     lapsing.'' Id. When the ICA was enacted, it required deferred 
     funds to be made available if either house of Congress passed 
     an ``impoundment resolution'' disapproving of the deferral. 
     Pub. L. No. 93-344, Sec. 1013(b) (prior to 1987 amendment). 
     In 1975, we suggested that Congress create an analogous 
     process to enable rejection of a rescission proposal. B-
     115398, Dec. 15, 1975. However, our statement predated INS v. 
     Chadha, 462 U.S. 919, in which the Supreme Court held a one-
     house veto provision to be unconstitutional because it was an 
     exercise of legislative power that circumvented the 
     procedures of bicameralism and presentment. The deferral 
     provision in the ICA was later eliminated in the Balanced 
     Budget and Emergency Deficit Control Reaffirmation Act of 
     1987. Pub. L. No. 100-119, title II, Sec. 206.
       Our 1975 opinions are based on the premise that Congress 
     could amend the ICA to provide Congress with a unilateral 
     mechanism to reject a rescission proposal. In addition to 
     Chadha, other Supreme Court decisions also have resoundingly 
     invalidated this premise. See Clinton, 524 U.S. 417, 438-41; 
     Chadha, 462 U.S. at 951-58. As the Court made clear in 
     Clinton, the Constitution vests the President with authority 
     to ``initiate and influence legislative proposals.'' 524 U.S. 
     at 438 (emphasis added). A rescission proposal is one such 
     legislative proposal. The rescission proposal does not have 
     the force of law: ``[t]here is no provision in the 
     Constitution that authorizes the President to enact, to 
     amend, or to repeal statutes.'' Id. 
       Because bicameral passage by Congress is necessary for the 
     President's proposal to become law, no congressional action 
     is necessary to invalidate the President's proposal. Without 
     affirmative congressional action, the President's proposal 
     remains just that: a proposal. Our 1975 opinions intimate 
     that, under some circumstances, congressional inaction on a 
     rescission proposal can be tantamount to affirmative 
     congressional action to enact the rescission proposal. This 
     interpretation would, in effect, give the President power to 
     amend or to repeal previously enacted appropriations merely 
     by calibrating the timing of the submission of a special 
     message. This interpretation is clearly contrary to the 
     Supreme Court's rulings in Chadha and Clinton. See 524 U.S. 
     at 448-49; 462 U.S. at 951-58. Therefore, we overrule our 
     prior inconsistent opinions.


                               conclusion

       The terms of the ICA are strictly limited. They vest in the 
     President limited authority to propose a rescission of budget 
     authority and to withhold such budget authority from 
     obligation for a limited time period during which Congress 
     may avail itself of expedited procedures to consider the 
     proposal. However, the statutory text and legislative history 
     of the ICA, Supreme Court case law, and the overarching 
     constitutional framework of legislative and executive powers 
     provide no basis to construe the ICA as a mechanism by which 
     the President may, in effect, unilaterally shorten the 
     availability of budget authority by transmitting rescission 
     proposals shortly before amounts are due to expire.
       To dedicate such broad authority to the President would 
     have required affirmative congressional action in 
     legislation, not congressional silence. See, e.g., B-303961, 
     Dec. 6, 2004 (declining to interpret a general 
     ``notwithstanding'' clause to imply a waiver of the 
     Antideficiency Act without indication that Congress intended 
     to relinquish its ``strongest means'' to enforce its power of 
     the purse). To paraphrase the Supreme Court, Congress does 
     not alter the fundamental details of its constitutional power 
     of the purse through vague terms or ancillary provisions--
     ``it does not, one might say, hide elephants in mouseholes.'' 
     See Whitman v. American Trucking Ass'ns, 531 U.S. 457, 468 
     (2001) (declining to interpret a statute in a manner 
     inconsistent with its plain meaning). A construction of the 
     ICA that would permit the withholding of funds proposed for 
     rescission through their date of expiration would be 
     precisely this elephant.
       Though the ICA permits the President to withhold amounts 
     from obligation under limited circumstances, the amounts are 
     rescinded only if Congress takes affirmative legislative 
     action through the constitutional processes of bicameralism 
     and presentment. Therefore, amounts proposed for rescission 
     must be made available for prudent obligation before the 
     amounts expire, even where the 45-day period for 
     congressional consideration in the ICA approaches or spans 
     the

[[Page E105]]

     date on which the funds would expire. We overrule prior 
     inconsistent GAO opinions.
           Sincerely,
                                              Thomas H. Armstrong,
     General Counsel.

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