        Constitutionality of “No Appropriation” Clause in the
          Watershed Protection and Flood Prevention Act
A “no appropriation” clause in the Watershed Protection and Flood Prevention Act, requiring approval
  of a construction project by the appropriate committees of the Senate and House of Representatives
  before Congress may enact appropriations legislation for the project, is constitutional.

                                                                                February 27, 1969

              MEMORANDUM OPINION FOR THE STAFF ASSISTANT TO THE
                        COUNSEL TO THE PRESIDENT

    The immediate question facing the President is what position he should take
with respect to the Watershed Protection and Flood Prevention Act enacted in
1954 (Pub. L. No. 83-566, 68 Stat. 666). Between 1954 and 1966 several hundred
watershed projects were processed under this law. In 1966 the Johnson Admin-
istration objected on constitutional grounds to a provision of the Act requiring
committee approval of project plans before appropriations are made. The section
provides:

        No appropriation shall be made for any plan involving an estimated
        Federal contribution to construction costs in excess of $250,000, or
        which includes any structure which provides more than twenty-five
        hundred acre-feet of total capacity unless such plan has been ap-
        proved by resolutions adopted by the appropriate committees of the
        Senate and House of Representatives . . . .

Id. § 2 (as amended, codified at 16 U.S.C. § 1002(2)). President Johnson submit-
ted a bill to Congress to repeal this section and to substitute a provision requiring
the Executive to report projects to the committees 30 days before work could be
begun. This legislation was not enacted.
   It is our understanding that, pursuant to President Johnson’s instruction,
numerous proposed watershed projects have been held in abeyance despite the fact
that the congressional committees approved the projects and that non-itemized
funds were appropriated by Congress. Several other watershed projects are being
examined within the Executive Branch but have not been submitted to Congress
due to the present impasse.
   The immediate question involving the watershed projects cannot be fully
understood without reference to the broader encroachment problem presented by
so-called “committee veto” provisions. There are two types of provisions through
which Congress has sought to give its committees oversight of projects authorized
under broadly worded enabling legislation. The earlier form, generally referred to
as a “come into agreement” clause, sought to authorize committees to approve or
disapprove Executive action. The typical “come into agreement” clause provided



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that after enabling legislation authorizing projects had been enacted, and after a
general appropriation bill had been passed, the Executive still had to receive the
approval of the substantive congressional committees having jurisdiction over that
type of project before the appropriated money could be spent. The second and later
type provides that no appropriation shall be made for projects which do not have
committee approval. The language in the Watershed Act is an example of the latter
type.

                                  I. Conclusions

   In our opinion, this “no appropriation” clause is not subject to constitutional
infirmities. It is unnecessary to decide, in order to reach an opinion on this
question, whether the quite different provisions of the “come into agreement”
clause are likewise constitutional.
   As to the Watershed Act, once it is determined that the “no appropriation”
clause is constitutional, the President can resolve the present impasse by simply
advising Secretary Hardin to proceed in compliance with the existing statute.
Since the law is on the books, the only question for executive determination at this
time is whether executive compliance with the act is constitutional. An affirmative
instruction to Secretary Hardin will not preclude the President from later taking
the position that the related, but in our opinion dissimilar, “come into agreement”
clauses are unconstitutional.
   As to future bills containing a “no appropriation” clause, the President will
have available to him the additional option of vetoing those which he feels are
unwise and not in the public interest, even though he may not be of the opinion
that the bills are unconstitutional. In making that determination, the President
might wish to consider the manner in which similar provisions of other acts have
been administered in the past, both with regard to fairness in allocation of projects
and with respect to the actual practice followed by Congress under the “no
appropriation” clause.

                                   II. Discussion

   Problems with respect to claimed congressional encroachment of this type
arose at least as early as the administration of President Woodrow Wilson when
Congress incorporated in an appropriation bill the following language:

       [N]o journal, magazine, periodical, or similar Government publica-
       tion shall be printed, issued, or discontinued by any branch or officer
       of the Government service unless the same shall have been author-
       ized under such regulations as shall be prescribed by the Joint Com-
       mittee on Printing . . . .




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H.R. 12610, 66th Cong. § 8 (“An act making appropriations for the legislative,
executive, and judicial expenses of the Government for the fiscal year ending June
30, 1921, and for other purposes”).
   President Wilson vetoed the bill and stated in his veto message:

       The Congress has the power and the right to grant or deny an appro-
       priation, or to enact or refuse to enact a law; but once an appropria-
       tion is made or a law is passed, the appropriation should be adminis-
       tered or the law executed by the executive branch of the
       Government.

H.R. Doc. No. 66-764, at 2 (1920).
    Congress re-passed the appropriation act without the section to which President
Wilson had objected. Pub. L. No. 66-231, 41 Stat. 631 (1920). Similar positions
were taken by Presidents Hoover, Roosevelt, Truman, Eisenhower, and Kennedy.
See Separation of Powers: Hearings Before the Subcomm. on Separation of
Powers of the S. Comm. on the Judiciary, 90th Cong., pt. 1, at 215–28 (1967)
(“SOP Hearings”).
    There are two principal arguments against the constitutionality of “come into
agreement” provisions. The first is the basic separation of powers argument: the
President is charged in Article II of the Constitution with the faithful execution of
the laws, and once a project is authorized, and money finally appropriated for it,
the carrying out of these congressional mandates is placed by the Constitution in
the Executive Branch of the government. The second argument is that giving
congressional committees power to veto projects proposed by the Executive grants
to the Committees final legislative authority which the Constitution, in Article I,
granted only to the Congress acting as a whole and subject to the veto power of the
President. Thus, this argument runs, “come into agreement” provisions are an
unconstitutional delegation of legislative power to congressional committees.
    In light of the long line of Presidents and Attorneys General who have adhered
to the view that such provisions are unconstitutional, such a view must be deemed
to have considerable weight. There was apparently recognition among leaders of
Congress that the “come into agreement” clause had serious constitutional
infirmities. Representative Patman in 1951, 97 Cong. Rec. 5443, and Senator
Dirksen in 1954, 100 Cong. Rec. 5095, both espoused the position that the “come
into agreement” clause was unconstitutional.
    It appears that Congress then sought some device which would avoid the con-
stitutional infirmity of this type of clause, and yet permit a degree of legislative
oversight in public works authorizations. In this area, Congress had at one time
enacted itemized enabling legislation, but more and more of the detailed decisions
had necessarily been delegated to the Executive Branch because of the magnitude
of the task. The result was the “no appropriation shall be made” clause, which was
first used in 1954. See 100 Cong. Rec. 10016 (remarks of Sen. Holland).



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   A “no appropriation” clause is, by its terms, not a restriction on the Executive,
but rather a directive to the Congress itself that there shall be a condition precedent
for the enactment of appropriation legislation for a particular project or group of
projects. That condition is the approval, by resolution of the appropriate substan-
tive committees of each House, of any plan involving expenditure of federal funds
beyond a minimum amount. Sponsors of the measure have stated that such a
requirement could, if desired, be enforced by a point of order in any floor debate
of an appropriation bill containing funds for projects which have not been so
approved by committee resolution.
   This is the kind of provision which appears in the Watershed Act with which
President Nixon must now deal. President Johnson faced the question whether to
approve legislation containing this type of provision in several instances. In the
Water Resources Research Act of 1964, Pub. L. No. 88-379, 78 Stat. 329, for
example, President Johnson approved the Act but stated:

       Although this legislation is so phrased that it is not technically sub-
       ject to constitutional objection, it violates the spirit of the constitu-
       tional requirement of separation of power between the executive and
       legislative branches.

Statement by the President Upon Signing the Water Resources Research Act, 2
Pub. Papers of Pres. Lyndon B. Johnson 861, 862 (July 17, 1964).
    However, as the clause was used with greater frequency by Congress during the
succeeding years of the Johnson Administration, the President adopted the
position that “no appropriation” provisions were subject to the same constitutional
infirmity as the older “come into agreement” provisions. Pacific Northwest
Disaster Relief Act of 1965—Veto Message: Message from the President Return-
ing Without Approval, the Bill (S. 327) Entitled “An Act to Provide Assistance to
the States of California, Oregon, Washington, Nevada, and Idaho for the Recon-
struction of Areas Damaged by Recent Floods and High Waters,” S. Doc. No. 89-
34 (1965); Construction at Military Installations: Message from the President of
the United States Returning Without Approval the Bill (H.R. 8439) to Authorize
Certain Construction at Military Installations, and for Other Purposes, H.R. Doc.
No. 89-272 (1965). In signing into law a number of bills containing such provi-
sions, President Johnson indicated in the signing statements that he did not recede
from his position that the “no appropriation” clauses were unconstitutional.
    The arguments that a “no appropriation” clause is vulnerable to the same con-
stitutional attack as the older “come into agreement” clause are ably stated in the
testimony of my predecessor, Assistant Attorney General Frank M. Wozencraft,
given before the Subcommittee on Separation of Powers of the Senate Judiciary
Committee, September 15, 1967. The thread of these arguments is that the “net
result” of the former is the same as the latter—before appropriated money may be
spent by the Executive, the approval of committees of Congress is required. If this



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is bad under the separation of powers arguments in the case of the “come into
agreement” clause, it must be equally bad under the “no appropriation” clause
since the Constitution looks to substance, rather than form.
   These arguments are fully developed, pro and con, in the transcript of the hear-
ings at which Assistant Attorney General Wozencraft testified. SOP Hearings at
201–34. With all deference, I am unable to concur in his conclusion with respect
to “no appropriation” clauses. In taking this position, I feel supported to some
extent by the fact that Acting Deputy Attorney General Minor, during the
Eisenhower Administration, likewise saw no constitutional infirmity in such a
clause. He stated:

       It is clear that the purpose of the new provision is designed to place
       in the Senate and House Committees on Public Works the same
       practical control over the administration of the lease-purchase pro-
       gram as did the provisions of the Senate version of the bill to which
       the Department objected on constitutional grounds. However, the
       new provision in the enrolled bill may be said to constitute an exer-
       cise of the rule-making power of the respective Houses in specifying
       the procedure to be followed by the Senate and House Appropria-
       tions Committees in determining appropriations for lease-purchase
       purposes. Thus viewed, there can hardly be objection on constitu-
       tional grounds to Congress directing its appropriations committees
       not to recommend funds to carry out lease-purchase agreements
       which have not been approved by the committees on Public
       Works . . . .

D.J. File 145-100-01-1, § 3.
    Sweeping generalizations which assume a distinct line between “legislative”
functions and “executive” functions and which assume that in every instance
“form” must give way to “substance” are particularly suspect in the area of
constitutional law. There is undoubtedly a line beyond which Congress may not go
in seeking to control the administration of a law after that law has gone through
the legislative process, but the “no appropriation” clause by its terms does not seek
to reach out beyond the legislative preserve in such a manner. Because it confines
its operative effect to the Legislative Branch, whereas the “come into agreement”
clause did not, the change is one of substance as well as form. Congress may
ultimately achieve the same degree of oversight with the “no appropriation” clause
as with the “come into agreement” clause, but since the former accomplishes that
result without invading the executive domain, the distinction is of constitutional
significance.
    I have given weight, in formulating my opinion as to constitutionality, to the
fact that the particular application of the clause in the act in question now before
the President is one which seeks only to exercise legislative oversight in an area



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where Congress has traditionally performed this function by enacting itemized
public works authorizations. Since the basic argument for unconstitutionality is
based on the idea of separation of powers, it cannot be irrelevant that the effect of
the “no appropriation” clause in this particular act is to retain for congressional
committees a share in the decision about individual projects of a type which were
once within the sole domain of Congress and its committees. Different constitu-
tional considerations might be presented if the function which Congress sought to
oversee were one which had traditionally been associated with the Executive,
rather than with the Legislative Branch. Examples are the closing down of military
bases and the devising of weapons systems.
   It is enough in this particular situation that Congress has sought to extend its
legislative oversight into an area which has traditionally been the prerogative of
the Legislative Branch, rather than that of the Executive, and that it has done so
with a provision which by its terms binds only the Congress and not the Executive.
This being the case, in my opinion, the Act which the President is presently called
upon to administer does not encroach upon any reasonable view of the executive
function and therefore suffers from no constitutional infirmity.
   A corollary of the interpretation that the “no appropriation” language is merely
an internal rule of Congress is that it does not bind the Executive. Thus, if
Congress passes general, unspecified watershed appropriations, as it has in the
past, the Executive is entitled to treat this money as finally appropriated and
allocable to projects which have not received committee approval.
   This is not to suggest that the Secretary ought not, as a matter of policy in cases
where funds have already been appropriated, consult with the affected congres-
sional committees about particular projects. But such consultation would be a
matter of comity rather than a requirement of law. Indeed, it appears that the
previous administration interpreted the clause to mean no expenditure should be
made without the approval of the committees, and accordingly consultation with
the committees was considered required by law.
   The Executive thus has the power to insure that the “no appropriation” clause is
administered according to its terms, if it desires to proceed in that direction. If in
fact Congress wishes to require the Executive as a matter of law to present projects
to its committees for approval, it would seem a reasonable prediction that appro-
priations will not be made in future years until projects have in fact been approved
by the committees.

                                III. Policy Matters

  The fact that a provision in an act is not unconstitutional does not, of course,
mean that it is either wise or, from the point of view of the Executive, desirable.
The President might feel that he wishes to exert continuing pressure upon
Congress to adopt the “report and wait” provisions which President Johnson felt
were a desirable substitute for the “no appropriation” provisions. The former



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would require the Executive, before spending appropriated money, to notify the
appropriate committees of the specific projects upon which the money was to be
spent, and to thereafter wait a given period of time—preferably 30 or 60 days—
before actually making the expenditure. During the waiting period, Congress (if it
were in session) would have the power to override the proposed executive action
by a legislative act subject to the President’s veto. Likewise, if the President felt
that the administration of the “no appropriation” clause was defective, either in
overall fairness of project allocation, or in degree of conformity to the terms of the
clause, he could use the veto as a matter of policy, without entangling himself in
the constitutional imbroglio in which his predecessor found himself.

                                               WILLIAM H. REHNQUIST
                                               Assistant Attorney General
                                                Office of Legal Counsel




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