WASHINGTON–During the heyday of Presidential defiance of Congress early this year, President Nixon had defended his impoundment of appropriated funds for health, educational and economic programs as inherent in the powers of the presidency. He said welcomed court tests of such White House refusals to spend funds which Congress creed should be spent by laws which he signed.
Since then, the courts have indeed decided many cases around the country as to the illegality of presidential impoundment. A tally of these decisions by Public Citizen lawyer, Tommy Jacks, and researcher Jacqueline Connelly, shows the courts to have come out overwhelmingly against President Nixon.
Out of 26 impoundment cases decided by the federal courts, sixteen district court cases and one appellate court decision have ruled impoundment to be illegal. Six cases have been dismissed by the courts after government release of the disputed funds; two other cases have been dismissed on other grounds without ruling on the impoundment question. In only one case has a court upheld an impoundment.
Thus, out of 18 actual court decisions on impoundment, 17 courts have decided against President Nixon while only one court decided in his favor.
In the survey, Attorney Jacks noted that “in many other cases still pending before federal district courts in which no final order has yet been issued, judges have granted preliminary injunctions to ensure that funds remain available until the final disposition of the cases.”
“The granting of preliminary injunctions in these cases is an indication,” says Jacks “that those courts will ultimately hold the impoundments to be illegal, since such preliminary relief may only be granted where it appears likely that the plaintiff will prevail ‘on the merits’.”
On the short end of a 17 to 1 score, it is not surprising that the President’s chief lawyer, Solicitor General, Robert Bork, has petitioned the Supreme Court for a judgment in the case of Georgia vs. Nixon without waiting for a lower court decision. Lawyers in the appellate division of the Justice Department are furious at Bork for both the strategy of leapfrogging the lower courts and the quality of his arguments.
The Georgia case involves the impoundment of highway, water pollution and some educational funds. The other cases, whatever their legalisms, involve the suspension of programs critical to the well-being of millions of Americans. For example, the President has withheld funds for community mental health centers, municipal waste disposal construction, library services, and a vast number of educational programs, including veterans schooling payments. He has also ordered impoundments of funds which have stopped or weakened disaster loan programs for farmers, rural housing, construction of a highway safety test facility in Ohio and poverty programs.
In their rulings, some on constitutional grounds, the courts have not passed judgment on the merits of these programs. They have simply concluded that the President had flounted the laws of the land or the constitutional authority of the Congress to appropriate funds.
In his recent Watergate speech, the President accused the Congress of being so concerned with that scandal that it has not gone about the business of the nation. There are many members of Congress who believe this was a grossly unfair accusation, givern the epidemic of White House impoundments that have undermined programs already enacted. They also wonder why the White House continues to opposed needed consumer,health, environmental, and tax reform bills which would pass the Congress if the President lent his support. Or simply dropped his opposition.