     Appropriations Limitation for Rules Vetoed by Congress

T h e P resen tatio n C lauses o f th e C o n stitu tio n , A rtic le 1, § 7, clauses 2 and 3, req u ire
   am en d m en ts o f fu n d in g statutes,- w h e th e r ach iev ed th ro u g h a legislative d isa p p ro v al
   m echanism o r o th erw ise, to be presen ted to th e P re sid en t in o r d e r to h a v e the
   fo rce o f law .

C o n g ress can n o t use its p o w e r to a p p ro p ria te m oney to c irc u m v e n t g en eral co n stitu tio n al
   lim itations o n its p o w er.

                                                                                            August 13, 1980

  MEMORANDUM OPINION FOR TH E ATTORNEY G E N ER A L

   This responds to your request for our views on the constitutionality
of Congressman Levitas’ amendment to H.R. 7584, the fiscal year 1981
appropriations bill for the Department of State, Justice, Commerce,
related agencies, and the Judiciary.1 The purpose of the amendment,
which was adopted by the House of Representatives by a voice vote on
July 23, 1980, is to prevent the use of funds appropriated under the bill
to administer or enforce any regulation which Congress has disap­
proved by legislative veto. 126 Cong. Rec. 19,313 (1980). For reasons
stated below, we believe that the amendment is unconstitutional to the
extent that it would be invoked by the exercise of power purportedly
granted by any legislative veto device, at least where that exercise
occurs subsequent to the enactment of the appropriations bill.2
   The amendment provides:
            Sec. 608. None of the funds appropriated or otherwise
          made available by this Act shall be available to imple­
          ment, administer, or enforce any regulation which has
          been disapproved pursuant to a resolution of disapproval

   1 T he related agencies are: A rm s C ontrol and D isarm am ent A gency; Board for Intem ationai
B roadcasting; Commission on Civil Rights; Commission on Security and C ooperation in Europe;
D epartm ent o f the T reasury, C hrysler Corp. Loan G uarantee Program ; Equal Em ploym ent O p p o rtu ­
nity Commission; Japan-U nited States Friendship Commission; Legal Services C orporation; M arine
Mammal Commission; Office o f the U nited States T rad e R epresentative; Securities and Exchange
Commission; Select Commission on Imm igration and Refugee Policy; Small Business A dm inistration;
U nited States M etric Board.
   2 Mr. Levitas offered an identical am endm ent to the fiscal year 1981 appropriations bill for
A griculture, rural developm ent, and related agencies (H .R. 7S91). T h e am endm ent was adopted, 126
Cong. Rec. 20,507 (1980). O ur views stated herein regarding the Levitas am endm ent to H .R . 7584
apply equally to its presence in H .R. 7591 o r o th e r appropriations bills.


                                                        731
            duly adopted in accordance with the applicable law of the
            United States.
This amendment is apparently intended to permit Congress to accom­
plish two distinct legislative acts with one set of votes. A vote under
the legislative veto provision of some substantive statute, disapproving
a rule promulgated by a covered agency, would not only have the
purported effect of disapproving the rule, but would also effectively
amend the terms of H.R. 7584 by imposing an unconditional limitation
on a previously permissible expenditure of funds.3 For example, if
Congress, pursuant to § 7(b) of the Civil Rights of Institutionalized
Persons Act (Pub. L. No. 96-247), voted to disapprove the Attorney
General’s standards for prisoners’ administrative remedies,4 the vote
would also effect a limitation on title II of H.R. 7584, which designates
the functions of this Department for which funds are available.
  Congress can undoubtedly amend a previously enacted appropriation
act to impose additional limitations on the use of appropriated funds.
The question raised by this proposal is whether Congress can do so
without presenting the amending legislation to the President for his
approval or disapproval. This Department has consistently taken the
position that the Presentation Clauses of the Constitution mandate the
President’s participation in the lawmaking process—no matter what
form that process takes.5 You recently reiterated this position in a
formal opinion to the Secretary of Education:
             I believe it is manifest, from the wording of clause 3
           and the history of its inclusion in the Constitution as a
           separate clause apart from the clause dealing with “bills,”
           that its purpose is to protect against all congressional

    3 A lternatively, by its term s the am endm ent could be interpreted as covering only rules w hich have
 already been the subject o f a legislative veto at the time o f the bill’s enactm ent. U nder this interpreta­
 tion, th ere w ould be no constitutional problem. It is undoubtedly permissible for Congress to send an
appropriations bill to the President in w hich functions that are denied funding are designated in any
 identifiable manner. It is o ur practice to interpret statutes in w ays that avoid constitutional infirmities,
 w henever possible. See. e.g.. Kent v. Dulles, 357 U.S. 116 (1958). F o r tw o reasons, how ever, such an
 interpretation seems unavailable here. First, since w e are aw are o f no rules prom ulgated by the
agencies covered by H .R. 7584 that have been vetoed by Congress, an interpretation o f the am end­
 ment that confined it to retroactive effect w ould have no meaningful purpose. Second, M r. Levitas’
statem ents in support o f the am endm ent appear clearly to contem plate that it will apply to future
legislative vetoes. 126 Cong. Rec. 19,312-19,313 (1980). If, how ever, before final enactm ent o f H.R.
7584 a regulation o f a co vered agency should be subjected to a legislative veto, it might be possible to
interpret this provision narrow ly, to avoid the constitutional issue. T his w ould depend, o f course, on
subsequent legislative history.
    4 T h e A ct provides: “ [T]he A ttorney G eneral shall . . . prom ulgate minimum standards . . . The
A tto rn ey G eneral shall submit such proposed standards for publication in the Federal Register . . .
Such standards shall take effect thirty legislative days after publication unless, w ithin such period,
eith er H ouse o f C ongress adopts a resolution o f disapproval o f such standards.” 42 U.S.C.
§ 1997e(b)(l).
    6     A rticle I, § 7, cl. 2 o f the C onstitution provides: “ E very Bill w hich shall have passed the H ouse of
R epresentatives and the Senate, shall, before it becom es a Law , be presented to the President . .
A rticle I, § 7, cl. 3 supplem ents this by prescribing: “ Every O rder, Resolution, o r V ote to w hich the
C o n cu rren ce o f the Senate and H ouse o f R epresentatives may be necessary . . . shall be presented to
the President . . .”


                                                      732
          attempts to evade the President’s veto power. The func­
          tion of the Congress in our constitutional system is to
          enact laws, and all final congressional action of public
          effect, whether or not it is formally referred to as a bill,
          resolution, order or vote, must follow the procedures pre­
          scribed in Art. I, § 7, including presentation to the Presi­
          dent for his approval or veto.*
Since the power to appropriate money, and to place binding limitations
on the use of that money, is a quintessential legislative act, the conclu­
sion is evident that the Presentation Clauses require amendments of
funding statutes, whether achieved through a legislative disapproval
mechanism or otherwise, to be presented to the President in order to
have the force of law.6
   It is well established that Congress cannot use its power to appropri­
ate money to circumvent general constitutional limitations on congres­
sional power. This point was well made in 1933, when Attorney Gen­
eral Mitchell observed, in an opinion to the President, that
          Congress holds the purse strings, and it may grant or
          withhold appropriations as it chooses, and when making
          an appropriation may direct the purposes to which the
          appropriation shall be devoted and impose conditions in
          respect to its use, provided always that the conditions do
          not require operation of the Government in a way forbid­
          den by the Constitution. Congress may not, by conditions
          attached to appropriations, provide for a discharge of the
          functions of Government in a manner not authorized by
          the Constitution. If such a practice were permissible, Con­
          gress could subvert the Constitution. It might make ap­
          propriations on condition that the executive department
          abrogate its functions.7
  The Supreme Court has since adopted the essence of Attorney Gen­
eral Mitchell’s position. In United States v. Lovett, 328 U.S. 303 (1946),
Congress had attached a condition to an appropriations bill forbidding
the payment of any funds in that bill to three named individuals.
Counsel for Congress argued that the provision was a

   • N o t e : T he full text o f the A tto rn ey G en eral’s opinion o f June 5, 1980, for the S ecretary o f
Education appears in this volum e at p. 21, supra, and the quoted passage at p. 24. Ed.
   6 Mr. Levitas, in support o f his am endm ent, argued that Kendall v. United States. 37 U.S. 524
(1838), forbids the Executive Branch to refuse to execute statutory com m ands from Congress. See 126
Cong. Rec. 19,313 (1980). In Kendall, the C ourt ordered the Executive to pay a certain sum to a
c ontractor w ith the Post Office, w here a statute directed that the paym ent be made but the Postm aster
G eneral refused to pay it. W e do not doubt the soundness o f that case; it is, how ever, inapplicable to
congressional action that does not meet the C onstitution’s prerequisites for legislation.
   7 37 O p. A tt’y G en. 56, 61 (1933). A ccordingly, the A tto rn ey G eneral concluded that C ongress
could not constitutionally condition an appropriation for refunds o f erroneously collected taxes on a
requirem ent that a joint congressional com m ittee decide the am ount o f each refund to be granted.


                                                    733
         mere appropriation measure, and that, since Congress
         under the Constitution has complete control over appro­
         priations, a challenge to the measure’s constitutionality
         does not present a justiciable question in the courts, but is
         merely a political issue over which Congress has final say.
328 U.S. at 313. The Court, in rejecting the argument made by Con­
gress’ counsel, agreed with the Solicitor General’s argument against the
constitutionality of the appropriation rider and established the principle
that the spending power may not be used indirectly to achieve an
unconstitutional end. The Court reaffirmed this basic tenet in Buckley v.
 Valeo, 424 U.S. 1 (1976) (per curiam), by asserting that Congress cannot
use a grant of power “in such a manner as to offend . . . constitutional
restrictions stemming from the separation of powers.” Id. at 132. The
Presentation Clauses constitute an explicit limitation on the power of
Congress stemming from the separation of powers, one which this
amendment would unconstitutionally contravene.
   The Executive’s duty faithfully to execute the law embraces a duty
to enforce the fundamental law set forth in the Constitution as well as a
duty to enforce the law founded in the acts of Congress, and cases arise
in which the duty to the one precludes the duty to the other. We
believe that the present case is such a case, because the Levitas amend­
ment intrudes upon the constitutional prerogatives of the Executive. To
regard this provision as legally binding would impair the Executive’s
constitutional role and would constitute an abdication of the responsi­
bility of the Executive Branch, as an equal and coordinate branch of
government with the Legislative Branch, to preserve the integrity of its
functions against constitutional encroachment. We therefore conclude
that, if enacted, the Levitas amendment will not have any legal effect,
except insofar as it is meant to deny funds for the implementation of
regulations that have been subjected to a legislative veto before the
bill’s enactment.8 Agencies covered by H.R. 7854 will accordingly be
authorized to implement regulations that have purportedly been vetoed
by congressional action that does not meet the Constitution’s requisites
for legislation.

                                             John M. H arm on
                                          Assistant Attorney General
                                           Office o f Legal Counsel




 8 See note 3 supra.

                                    734
