         Constitutionality of a Joint Resolution Requiring the
         President to Propose a Balanced Budget Every Year
A proposed joint resolution requiring the President annually to propose a budget in which estimated
  expenditures do not exceed estimated receipts, if made effective, would be invalid.

                                                                                 August 16, 1955

      MEMORANDUM OPINION FOR THE ACTING DEPUTY ATTORNEY GENERAL

  The proposed resolution, introduced on June 20, 1955, by Representative Can-
non, provides, in its entirety:

        That hereafter, except in time of war or national emergency, the es-
        timated expenditures contained in the Budget for the fiscal year for
        which presented shall not exceed the estimated receipts during such
        fiscal year: Provided, That if, in accomplishing such requirement it
        should become necessary to reduce or eliminate objects or projects
        which the President should deem it would not be in the public inter-
        est to do, such reductions or eliminations shall be enumerated in the
        message transmitting the Budget along with definite recommenda-
        tions for financing their cost.

H.R.J. Res. 346, 84th Cong. The resolution, if made effective, would operate as a
limitation on the Act of June 10, 1921, ch. 18, § 201(a), 42 Stat. 20, codified as
amended at 31 U.S.C. §§ 11 et seq., which provides that the President shall trans-
mit to the Congress the budget, containing, among other matters, “estimated ex-
penditures and proposed appropriations necessary in his judgment for the support
of the Government for the ensuing fiscal year.” 31 U.S.C. § 11(d) (1950).
    Article II, Section 3 of the Constitution provides that “[h]e [the President] shall
from time to time give to the Congress Information of the State of the Union, and
recommend to their Consideration such Measures as he shall judge necessary and
expedient; . . . he shall take Care that the Laws be faithfully executed . . . .”
    The proposed resolution would impinge upon the affirmative duties thus im-
posed upon the President in at least two significant respects. First, in order to
fulfill his obligation to transmit information to the Congress, together with such
measures “as he shall judge necessary and expedient,” the President is given
absolute discretion as to the character of information and recommendations he
may choose to transmit. The proposed resolution plainly would frustrate the
President’s responsibility of advising the Congress of the needs of the nation, the
measures for fulfilling those needs, as his judgment dictates, and the required
appropriations therefor. It appears too clear for serious question that a legislative
fiat which seeks to remove the President’s unlimited judgment in communicating
with the Congress is in violation of the cited provisions of the Constitution.



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    Second, the President’s responsibility for the faithful execution of the laws
requires that he be given sufficient funds to discharge his constitutional duty. The
proposed resolution would have the obvious effect of preventing the proper
performance of executive functions through the arbitrary compression of need up
to but not exceeding estimated receipts. Consequently, through legislative
processes unrelated to appropriations, the Congress will continue to enact
legislation requiring administration and enforcement by the Executive Branch.
However, since for many years past the nation has lived under an unbalanced-
budget economy (apart from war and national emergency periods), the execution
of the laws has required expenditures in excess of receipts. It is thus obvious that
the President would be given laws to execute for which an appropriation request
could not be made. The inevitable consequence of any such posture would be an
inability to carry out the constitutional mandate of faithfully executing the laws.
    It may also be observed that the achievement of a balanced budget, if that
should be the will of the Congress, is primarily a legislative matter. Clearly, in
largest part, it is the congressional enactments which require expenditures in
excess of receipts. The resolution, therefore, attempts to shift non-delegable
legislative functions to the Executive Branch, in violation of the principle of
separation of powers.
    The exception provided for times of war or national emergency do not relieve
the resolution of its aspects of invalidity. The legal defects discussed would cause
forbidden interference with the executive process during unexceptional periods.
    It may be argued that the proviso for “public interest” objects or projects would
permit the President to accomplish all necessary purposes since, presumably, all
requests for appropriations would be for objects or projects in the public interest.
If this were so, however, the resolution would need to be viewed as being wholly
without purpose. Since, by plain intention, it attempts to place a limitation upon
the President, we should not read it as being self-defeating.
    For the foregoing reasons, we are of the view that Resolution 346, if made
effective, would be invalid.

                                               FREDERICK W. FORD
                                          Acting Assistant Attorney General
                                               Office of Legal Counsel




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