City of New Haven, Conn. v. U.S., s. 86-5319
| Decision Date | 20 January 1987 |
| Docket Number | Nos. 86-5319,s. 86-5319 |
| Citation | 809 F.2d 900 |
| Parties | , 55 USLW 2405 CITY OF NEW HAVEN, CONNECTICUT v. UNITED STATES of America, Appellant. NATIONAL LEAGUE OF CITIES, et al. v. Samuel R. PIERCE, Jr., Secretary of H.U.D., et al., Appellants. CITY OF CHICAGO, a municipal corporation, et al. v. U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, et al., Appellants. to 86-5321. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of columbia.
Douglas Letter, Atty., Dept. of Justice, with whom Richard K. Willard, Asst. Atty. Gen., Dept. of Justice, Joseph E. diGenova, U.S. Atty., James M. Spears, Deputy Asst. Atty. Gen. and Robert E. Kopp, Atty., Dept. of Justice, Washington, D.C., were on the brief for appellants in Nos. 86-5319, 86-5320 and 86-5321.
Neil Proto, with whom Edward R. Venit, Washington, D.C., was on the brief for appellee, City of New Haven in No. 86-5319.
David C. Vladeck, with whom Alan B. Morrison, Eric R. Glitzenstein, Cynthia Pols, Washington, D.C., Joel D. Stein, Craig J. Hanson and Amy L. Beckett, Chicago, Ill., were on the joint brief for appellees, National League of Cities, et al. in Nos. 86-5320 and 86-5321.
Before EDWARDS and BORK, Circuit Judges, and SWYGERT, * Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
In this case, we are called upon to decide the extent of the President's statutory authority to delay (or "defer") the expenditure of funds appropriated by Congress. Under section 1013 of the Impoundment Control Act of 1974 ("ICA" or the "Act"), 2 U.S.C. Sec. 684 (1982), the President must indicate his intention to defer a congressional appropriation by sending a "special message" to Congress. In that message, the President is required to justify the deferral and specify its amount, its intended length and its probable fiscal consequences. Under the Act, if either House of Congress passes an "impoundment resolution" disapproving the "proposed" deferral, the President is required to make the funds available for obligation. If neither House acts, the deferral takes effect automatically, although it may not last beyond the end of the fiscal year. 1
The majority of proposed deferrals are routine "programmatic" deferrals, by which the Executive Branch attempts to meet the inevitable contingencies that arise in administering congressionally-funded agencies and programs. Occasionally, however, the President will seek to implement "policy" deferrals, which are intended to advance the broader fiscal policy objectives of the Administration. The critical distinction between "programmatic" and "policy" deferrals is that the former are ordinarily intended to advance congressional budgetary policies by ensuring that congressional programs are administered efficiently, while the latter are ordinarily intended to negate the will of Congress by substituting the fiscal policies of the Executive Branch for those established by the enactment of budget legislation. 2
In the instant case, the President invoked section 1013 as authority for implementing four separate policy deferrals. In particular, the President deferred the expenditure of funds earmarked for four housing assistance programs to be administered by the Department of Housing and Urban Development ("HUD"). The appellees--various cities, mayors, community groups, members of Congress, associations of mayors and municipalities and disappointed expectant recipients of benefits under the four programs--brought these consolidated actions challenging the authority of the President to implement policy deferrals pursuant to section 1013. 3 That challenge was based on the inclusion in the statute of a legislative veto provision of the type held unconstitutional by the Supreme Court in Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). According to the appellees, the unconstitutional legislative veto provision contained in section 1013 rendered the entire section invalid, leaving the President without statutory authority on which to base the deferrals in question. The appellees requested a declaratory judgment that section 1013 was void in its entirety and an injunction obligating the nominal defendants (the United States, the Secretary of HUD and the Director of the Office of Management and Budget) to release the funds appropriated by Congress for the four HUD programs.
After carefully analyzing the intent of Congress in enacting section 1013, the District Court held that the section's unconstitutional legislative veto provision was inseverable from the remainder of the section. City of New Haven v. United States, 634 F.Supp. 1449 (D.D.C.1986). Accordingly, it declared section 1013 void in its entirety and ordered the defendants-appellants to make the deferred funds available for obligation. Id. at 1460. Shortly thereafter, however, the President signed into law legislation overturning the challenged deferrals. 4 Pursuant to this legislation, the funds deferred by the President have been made available for obligation.
For much the same reasons offered by the District Court in its thorough and able opinion, we hold that the unconstitutional legislative veto provision in section 1013 is inseverable from the remainder of that section. We therefore affirm the District Court's declaratory judgment striking down section 1013 in its entirety. We hold, however, that the request for injunctive relief is now moot.
In November of 1985, President Reagan signed HUD's fiscal year 1986 appropriations bill. 5 Included in that bill were appropriations for four programs administered by HUD: the Community Development Block Grant Program, under which HUD makes grants to state and local governments for community development projects; 6 the Section 8 Housing Assistance Payments Program, under which HUD provides subsidies (through public housing agencies) to low-income families to enable them to obtain low-cost housing; 7 the Section 312 program, under which HUD lends money (typically to cities or local public agencies) to be used to rehabilitate residential property in low-income neighborhoods; 8 and the Section 202 program, under which HUD lends money to rehabilitate low-cost rental units for the handicapped and the elderly. 9 In February of 1986, the President sent impoundment notices to Congress pursuant to section 1013 announcing his intention to defer the expenditure of funds for these four programs. One of the reasons provided by the President for the deferrals was to bring 1986 spending levels into line with the Administration's 1987 proposed budget. See 51 Fed.Reg. 5953-58 (1986). Previously, the President had failed in his efforts to convince Congress to drastically reduce these expenditures in its 1986 budget. Thus, it is not disputed that the deferrals were made for "policy" reasons.
Because the President relied solely on section 1013 as authority for the deferrals, the District Court was faced squarely with the question whether the unconstitutional legislative veto provision in section 1013 is severable from the remainder of that section. This question, the District Court recognized, was purely one of congressional intent. Specifically, the court was required to consider what Congress would have done had it known at the time it passed section 1013 that the legislative veto provision was unconstitutional. Would Congress nonetheless have conferred deferral authority on the President, even though it could not exercise control over that authority by means of a legislative veto? Or would Congress have refused to confer deferral authority on the President, preferring "no statute[ ] at all" 10 to a statute that permitted the President to defer funds without the check of a legislative veto?
After thoroughly examining the statutory language, the legislative history and the historical political context surrounding passage of the Act, the District Court had little difficulty concluding that Congress would have preferred no statute at all to a statute that conferred unchecked deferral authority on the President. Beginning with the title of the statute itself, and continuing with an analysis of the statute's legislative history, the court found that the "raison d'etre " of the entire legislative effort was to wrest control over the budgetary process from what Congress perceived as a usurping Executive:
Control--how to regain and retain it--was studied and debated at length, on the floor and in committee, over a period of years by a Congress virtually united in its quest for a way to reassert its fiscal prerogative. A clearer case of congressional intent--obsession would be more accurate--is hard to imagine.
In the course of its analysis, the District Court cited numerous statements by individual legislators illustrating Congress' anger at frequent presidential impoundments and its preoccupation with limiting the President's authority to override duly enacted budget legislation. Id. at 1455-58. The court also noted that these same sentiments were expressed in the Conference Committee Report. Id. at 1455 (citing S. CONF.REP. NO. 924, 93d Cong., 2d Sess. 49, 76-78, reprinted in 1974 U.S. CODE CONG. & ADMIN NEWS 3462, 3591, 3616-18). In contrast, the trial court was unable to find a single legislative expression of support for the proposition "that the President be allowed to defer budget authority without the check afforded by at least a one-House veto." Id. at 1457 n. 9 (emphasis in opinion). This overwhelming evidence of congressional intent, the court concluded, conclusively demonstrated that Congress--had it known that it could not disapprove unwanted impoundments by means of a legislative...
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