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Russell Train, RIP

- September 26, 2012

Not everyone gets to have their name entitling a famous court case limiting presidential power, so it seems only right to take note of the death this past week of Russell E. Train (1920-2012), noted conservationist and Nixon/Ford-era environmental administrator.

Now, Train did many things in a long and storied career – he was a tax judge turned environmentalist (apparently spurred by a safari epiphany) who became president of the World Wildlife Foundation — his memoir is called Politics, Pollution, and Pandas. In between he was undersecretary of the Interior department from 1969 to 1970, chaired the newly created Council on Environmental Quality from 1970 to 1973, and served as the second administrator of the EPA from September 1973 through the end of the Ford administration. He believed in global warming when Republicans were allowed to, and after they weren’t (working with current EPA head Lisa Jackson on expanding regulation of tailpipe emissions). He even managed to get Nixon to promise to “propose programs to make better use of our land” in the 1971 State of the Union address (to the bemusement of the President, who apparently asked afterwards, “Who’s the son-of-a-bitch who put land use in that speech?” (Note to unitary executives: it’s a good idea to read your State of the Union addresses before you give them.))

But he also wound up as the name of a 1975 Supreme Court case seeking to defend the president’s right to impound funds, Train v. City of New York (420 U.S. 35). Nixon had claimed that while Congress had every right to appropriate funds, presidents could decline to spend those funds. As it became clear that the funds Nixon did not want to spend were on programs he had opposed in the first place, critics charged he was effectively exercising a line item veto. The Federal Water Pollution Control Act Amendments of 1972, for instance, made funds available to localities for sewage treatment upgrades; Nixon ordered that only $2 billion of the $5 billion allotted for fiscal 1973 be spent, and $3b of the $6b for FY74. Train, at EPA, withheld the “extra” funds. The city of New York – which was also, by the way, the entity that sued Bill Clinton over funding denied it under the Line Item Veto Act in 1997 – went to court.

In the meantime, the Congressional Budget Act that re-made the budget process in 1974 also included the Impoundment Control Act (PL 94-344), prohibiting the practice in statute. In Train, the Supreme Court piled on.  “As conceived and passed in both Houses, the legislation was intended to provide a firm commitment of substantial sums within a relatively limited period of time in an effort to achieve an early solution of what was deemed an urgent problem,” wrote Justice Byron White. “We cannot believe that Congress, at the last minute, scuttled the entire effort by providing the Executive with the seemingly limitless power to withhold funds from allotment and obligation. Yet such was the Government’s position in the lower courts — combined with the argument that the discretion conferred is unreviewable.”  The Court held that neither argument was correct.

It was hardly the end of executive machinations over budgetary discretion. But it ended one front of the wars of Watergate.