Faced with what he considered a profligate Congress, Richard Nixon transformed an occasional practice of former Presidents into a tactic of confrontation. Claiming he had a presidential right of impoundment, Nixon simply refused to spend at least $16 billion appropriated by Congress for a variety of projects. In 1973 the Supreme Court, aware that it might soon face more serious tests of presidential power, ducked the issue. Last week, with those problems behind them, the Justices turned to an impoundment-related suit and by a 9-to-0 vote delivered one more resounding no to the Nixon doctrine of Executive power.
The case involved Nixon's decision to spend no more than $5 billion of the $11 billion that Congress had appropriated, over his veto, for water-pollution control. Although the court stuck strictly to the language of the pollution law and avoided any sorting of federal powers, Justice Byron White's opinion bluntly agreed with the plaintiff, New York City, that "the act does not permit such action" by any President.
The decision should spring an extra $5 billion in water-pollution funds if localities can draft acceptable programs. The other big chunk of Nixon-blocked appropriations was $9.1 billion in highway funds. Two weeks ago, President Ford freed $2 billion of the total as a recession-fighting measure. The court's reasoning last week does not apply to the road controversy, but the betting is that the Justices will also strike down Nixon's highway-fund blocking when the argument reaches them.
That should just about end the confrontation; Congress last year passed a law eliminating any future Nixon-style impoundment. Under the new law, the President must get the approval of a majority of Congress if he wishes to withhold any authorized funds. He may delay the spending—but only if he tells Congress, and if a majority of either House does not vote against the delay.