LEGAL EFFECT OF HOUSE APPROPRIATIONS COMMITTEE INSTRUCTIONS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP92-00455R000300070020-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 4
• Document Creation Date: December 15, 2016
• Document Release Date: August 9, 2002
• Sequence Number: 20
• Publication Date: April 13, 1977
• Content Type: MF

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CGC 77-2485 vG FFii
13 April 1-977
legislative pronouncements (other than laws) and directed to the executive OGC
branch agencies. Further, it would appear that any such instructions 25X1
would amount to a Congressional usurpation of executive branch authority.
eiectzve instruction on the part of the Committee. Congress of course has. -
a number of powers under the Constitution, primarily those of enacting leg-
islation, investigating, declaring war, etc But the executive power..shail
be .bested_in a President of the United States of ?merlca.'' Wefind riathing
in the Constitution or statutes which would ream.^e executive branch agencies
to comply with instructions contained in conference reports or in other
the establishment of a permanent IC cadre points out that the S T.T I N T
separation of powers doctrine in the Constitution prec udes-any legally
cr
-rT
MEMORAi1DvN.f FOR . Denutv to tT,p T)(-.T f f-. T_--11;_.,._... r---- -
SUBJECT Legal Effect of House Appropriations Committee
"Instructions"
1. The attached memorandum bi onsiders the questions S TMTINT
you posed concerning the legal effec tions taken by the House
Appropriations Committee, specifically the Committee's instructions, in TAT I IV T
the course of the recent reprogramming exercise, which apparently would
terminate two named programs, and the Corn rnitteeIs vario ' ns
concerning the organization and operation of the IC Staff. oncludes
that the Committee's actions do not establish legal requirements and that they
are without legal effect. We intend also a second paper addressing the specifics
of these two particular reprogramming or termination decisions.
2. As the Committee's instructions concerning the organization and
operation of the IC Staff, including the requirement: fora detailed plan for
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 25X1
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OGC
OGC/RHL/has
Distribution:
.OPig - Addee w?/att
'4. - SUBS: APPROPRIATIONS
1 - RHL Signer
1 - Chrono
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STATINT
 such vi cialsa ht '( be z' Trer`L_ore, in corsider:n
proved or elgase P -Q0455R000300070020-4 .
the Clues loll as to \\' nc_i prerogat~`: es in Yegar ~O reprogramming ac bons
are held by officials in the executive agencies and which have been reserved
by the Congress, it is advisable to look first to the terms of the guidelines
agreed upon.
S. Where there is no proposed reprogramming action, but. rather a
directive from the Congress not to expend funds as originally appropriated,
the question would seem to be one of whether the original appropriation was
effectively repealed. The Congress has the power to repeal an appropriation
statute just like any other statute.? A statute may be repealed expressly,
or by implication, but in either case legislative action is required. A
resolution, or a bill which never becomes a law, cannot repeal a statute.9
A fortiori, it would seem that comments by individual members of the -
legislature to the effect that moneys should not be expended as appropriated
have no legal effect.
9. Under the United States Code there are provisions directed both
at overobligation of appropriations and underobligation of Appropriations.
The former situation is dealt with at 31 USC 665, the Anti:-Deficiency Act,
which prohibits the obligation of funds in excess of available appropriations.
The latter situation is dealt with at 31 USC 1401 et.seq., the Impoundment
Control Act of 1974.
10. Section 1401 defines deferral of budget authority to include the
withholding or delaying of obligation or expenditure of budget authority
provided for projects or activities. Section 1403 provides that when any
officer or employee of the United States proposes to defer any budget
authority provided for *a specific purpose or project, ttile President shall
transmit to the House and the Senate a special message setting forth all
the facts, circumstances and considerations relatrig to the proposed -
deferral. Section 1402 provides for a similar report whenever the
President determines that any budget authority will not be required to
carry out the fall objectives of programs for which it is provided or that
such bud get authority should be rescinded for fiscal policy or other reasons.
.Under section 1403, the proposed deferral is ineffective if either House
passes a resolution disapproving the deferral. Under 1402, the proposed
-recession is ineffective if the Congress does not complete action on a recission
bill within 45 days. Section 1406 makes both sections 1407 and 1403
7 82 C.J.S. Statutes ?279.
aid,. ?280 .
id.
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enforceable through civil ac icnn brou,,ht by the Comptroller General in
district' court.
11. Quite clearly, therefore, the decision not to expend funds as
appropriated is a serious one . While the legislative history of the
o
Impoundment Control Act indicates that it is aimed primarily at executive
branch action, it must be noted that section 1403 addresses itself to
"any officer or employee of the United States." In any event, any recission
or deferral proposal requires action on the part of the executive branch
for its implementation and would therefore appear to come within the Act._
While presumably the Congress and executive can jointly agree not to expend
certain funds without fulfilling all the procedural requirements of the
Impoundment Control Act, unilateral termination of a program is not to be
lightly regarded. In the situation where the Congress is suggesting that a
program or project be terminated, it is suggested that some formal embodiment
of the agreement to terminate be sought.
12. In the absence of agreement to terminate, it would seem as a matter
of strict legalities that under existing law the Congress has the option to repeal
the appropriation and the executive has the option to use the procedures of
the Impoundment Control Act. However, inasmuch as both. processes are
cumbersome, the realities of interdependence weigh in favor of reaching.
an accommodation short of falling back to s zict legalities. Nonetheless,
as previously indicated, it would appear advisable to seek a clear and
authoritative expression of Congressional intent that moneys not be expended
as appropriated before terminating a project for which they were specifically
appropriated.
STATINT
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