ENFORCEMENT PROVISIONS UNDER THE BILL

Mr. DELANEY. Mr. Mahon, in a word, the situation is this: The Congress has authorized and appropriated moneys for specific purposes. Now, the President has chosen to take no action, and no action has been taken. So we are in a no-man's land. We are not moving. As a result, we have H.R. 5193. Can you tell us under your bill, and I have read it rather carefully, how you can enforce it in the event that the President decides he will take no further action than he has taken up to this date? What can the Congress do about it under your bill?

Mr. MAHON. On page 2 of the bill, I read line 15:

The President shall cease impounding of funds set forth in a special message if within 60 calendar days of continuous session after the date on which the message is received by the Congress the specific impoundment shall have been disapproved by Congress by passage of a concurrent resolution in accordance with the procedures set out in section 4 of this act.

In other words, if this becames a law, if the President signs it or it should be passed over his veto, then the President is required to cease an impoundment after both Houses of Congress have passed a concurrent resolution.

Mr. DELANEY. If he takes no action, what do you do about it? Mr. MAHON. This is all that can be done by Congress under the circumstances as they exist today.

Mr. DELANEY. And there is no enforcement in this bill, is there? Mr. MAHON. You can't go down and command the barracks and take over. There is no easy way to do this when a spirit of cooperation is lacking.

Mr. DELANEY. I agree with you.

Mr. MAHON. This is a moderate and commonsense approach to a very difficult problem. It depends somewhat upon good faith and cooperation between the executive and the legislative branches. This proposal, in my judgment, would tend to bring about better cooperation and understanding and more consultation between the executive and the legislative branches.

Mr. DELANEY. This is the crux of the entire problem, is it not? There is no way you can do it under this legislation even in the event it was passed.

Mr. MAHON. But under the present circumstances it is claimed by the administration that because he must pursue certain broad economic goals the President has complete authority over the programs and the expenditure of funds. That leaves Congress more or less out of the picture.

This bill reaffirms the general attitude. in my opinion, of most of the Members of the Congress and most of the people of the United States of America.

Mr. DELANEY. We know the attitude of Congress because they passed the authorization, and they have appropriated money for the purpose. Now it is before the President. He has the money, he has the authority. and he doesn't choose to go through with it. What can we as Members of Congress do? Outside of public opinion, is there anything?

Mr. MAHON. Public opinion would be a mighty force in connection with this.

Mr. DELANEY. We agree with that. Outside of that what is there if he still chooses to take no action? What do we do?

Mr. MAHON. I have no remedy for that. The bill is not all encompassing. It is a narrow bill. It is a procedural type bill. If anybody has a suggestion to go beyond the procedural objective of this bill, that is a matter that would be in other legislation.

Mr. DELANEY. We are holding these hearings, and we would like to get some results. In the event Congress decided to pass the bill, then we would be in no better position if the President chooses to take no action than we are today; is that right?

Mr. MAHON. Would a President sign a bill or have one passed over his veto and then flout the actions of the legislative branch? Mr. DELANEY. He has already done that.

Mr. MAHON. But he claims he has done it under color of other legislation, and that he therefore, has the authority. This would clearly make the point that such authority could not be necessarily imposed upon the Government.

Mr. DELANEY. I don't want to prolong this, but in a word how can you force the President to spend money he doesn't choose to spend? How can you do it?

Mr. MAHON. There are ways that one could discuss, but I have no proposal in this bill to force the President to comply with the law of the land.

Mr. DELANEY. Then we would be in no better shape in the event this was passed.

Mr. MAHON. We would be in much better shape, because we would have a tool to deal with a very difficult situation. Why should Congress sit idly by and not provide itself with all necessary tools to do its job? If other branches of the Government do not cooperate, does that give us license to be derelict in our duty to take precautions to protect the public interest?

Mr. DELANEY. I am asking that question. There is no enforcement in this bill. There is nothing we can do about it in the event he chooses to do nothing. What can we do in the event the President decides he is not going to take any action?

Mr. MAHON. Congress can use the power of the purse as it desires. Congress can also withhold legislation. This is a question which has not been resolved during the past 200 years, and I don't believe we can resolve it right now, I will say to my friend from New York.

Mr. DELANEY. Thank you.

The CHAIRMAN. Mr. Martin.

Mr. MARTIN. Thank you. Mr. Chairman.

I have several questions, and I will try to stay within my time limit. I hope, Mr. Mahon, your answers will be brief.

Mr. MAHON. I won't filibuster.

CONCURRENT RESOLUTION FEATURE OF THE BILL

Mr. MARTIN. First of all, I should like to point out to you section 7, article 1, of the Constitution, which requires that every order, resolution or vote to which the concurrence of the Senate and House of Representatives may be necessary, except on a question of adjournment, shall be presented to the President of the United States and before

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the same shall take effect shall be approved by him, or being disapproved by him shall be repassed by two-thirds of the Senate and the House of Representatives.

Then I would like to quote from Cannon's Precedents of the House of Representatives, volume 7, section 1037:

"A concurrent resolution is without force and effect beyond the confines of the capitol."

The legislation which we have before us provides for a concurrent resolution to be passed by the House and the Senate as a means for the Congress to disapprove of some of the impoundments of funds by the President.

How do you answer this contradiction in light of the Constitution? It seems to me that the bill before us may be unconstitutional.

Mr. MAHON. The Constitution says many things. Among other things, it says that the President shall faithfully execute the laws of the land. Under this bill, the law of the land would be that "The President shall cease any impounding set forth in his special message if within 60 days," and so forth.

If this bill becomes the law of the land, then the concurrent resolution would be the controlling factor. As precedent for that we have the current system for considering Government reorganization plans. We pass laws giving the President the right to propose reorganization plans for the Government. Those reorganization plans are placed into effect unless Congress takes action to the contrary. This is similar to the situation which the gentleman has presented.

Mr. MARTIN. It seems to me that it is a direct violation of the section of the Constitution which I read to you.

Let me give you a quote, Mr. Mahon.

ANTI-DEFICIENCY ACT

Mr. Mahon, on January 29 of this year, 1973, you said on the floor of the House, and I quote: "The administration and the Congress must find a better way to cope with the situation which confronts us. The Anti-Deficiency Act suggests one avenue that might be worth exploring." You refer to the Anti-Deficienhy Act in your testimony. Since your bill would immensely weaken the Anti-Deficiency Act the situation must be less serious than it was in January. Would you tell us how?

Mr. MAHON. This bill does not weaken, change, or modify in any way the Anti-Deficiency Act. I have come out strongly in support of the Anti-Deficiency Act, to give the Executive the flexibility which he needs to properly administer the Government.

Mr. MARTIN. But this contradicts the Anti-Deficiency Act, what you are attempting to do.

Mr. MAHON. No, the bill does not contradict that act.

Mr. MARTIN. Certainly it does, because under the Anti-Deficiency Act, the Executive, the President of the United States, is given broad powers in regard to the spending of money appropriated by the Congress. You take it away from him here.

Mr. MAHON. He is given limited powers which he has had for a long time, limited powers to withhold the expenditure of funds, which it

seems to me is a good tool. There is nothing in this proposal that would repeal any aspect of the Anti-Deficiency Act.

If there is an issue between the legislative and the Executive as to whether or not the Anti-Deficiency Act is being exceeded by the Executive, then this gives the Congress a tool to deal with the specific issue. Mr. MARTIN. It gives the tool to the Congress to nullify actions of the President in trying to save taxpayers' money, and cut down on the expenses of the Federal Government, but it does not provide on the other hand any method by which the Congress will reduce the cost of the Federal Government.

THE $250 BILLION EXPENDITURE CEILING

H.R. 16810 passed the House last fall. It was the increase in the debt limit, which was required at that time. The total debt limit was raised to $465 billion. The second section of that act provided expenditures and net lending during the fiscal year ending June 30, 1973, under the budget of the U.S. Government, shall not exceed $250 billion.

That passed the House and it passed the Senate, but because of technical difficulties between the two Houses, no agreement could be reached in conference before adjournment of the Congress. The House passed this. This was the sense of the Congress, the $250 billion limitation. And yet the total appropriations amount to about $261 billion. The President is simply trying to hold this spending limit to $250 billion which the Congress concurred in by its action, although final agreement was not reached because of technicalities. Because he is trying to do this and cut back on various programs to bring the spending limit within the $250 billion which the Congress actually approved, you people on your side of the aisle are objecting to these cutbacks in expenditures and questioning the judgment of the President in regard to his cutbacks to hold it to $250 billion.

I want to tell you, Mr. Chairman, Mr. Mahon, that the people of the United States support the President wholeheartedly in his efforts to reduce the cost of Federal Government. You are doing exactly the opposite in the legislation that we have before us here. You are proposing that the Congress is going to increase these expenditures.

Mr. MAHON. I would say that the people of the United States, in my opinion, want to preserve our system of government. They want our system to operate. Congress considered the $250 billion ceiling, considered it in the House and the Senate, and decided not to enact it into law. The American people would not agree that it should be considered as a law or the will of Congress. It has no legislative import because it is not the law of the land. This is a government of laws. If we have a hearing on a measure or pass it through the House, that does not mean that it has the effect of law.

RESPONSIBILITIES OF THE EXECUTIVE

Mr. MARTIN. It is not a question, Mr. Mahon, of one-man government in the White House. The Constitution, in the way this country and Government operates, specifically gives certain duties to the executive branch of the Government, spread over many departments and agencies. Of necessity, they must make judgments as to how those

funds are spent. If they don't make judgments, they are not doing a good job. That is simply what you are objecting to in your legislation today.

The CHAIRMAN. Congressman Bolling.

Mr. MAHON. I would like to respond, Mr. Chairman.

Mr. BOLLING. The gentleman can respond entirely on my time. I have no questions. I think this is a most important point.

Mr. MAHON. I want to respond by saying yes, the Constitution does impose on the executive certain responsibilities. The major responsibility is to faithfully execute the laws of the land. This is the responsibility of the executive branch. We give the executive considerable latitude, and we don't take away latitude in this bill. But we give Congress an opportunity to work its will with respect to exerting the power of the purse, which is very clearly set forth in the Constitution.

Mr. BOLLING. It seems to me this is the crux of the issue. If the Congress does not act on this matter, and if the matter is allowed to stand as it now does, we will, in effect, have one-man rule because the President has arrogated to himself the decision as to what moneys will be spent for what programs. If that is not one-man rule, what is it? Mr. MAHON. I agree substantially with the observation which has been made by the gentleman from Missouri.

Mr. BOLLING. The attempt of the gentleman from Texas, Mr. Mahon, is to see to it that there is restored a balance, as the Constitution required and desired, in the powers of the Congress and the powers of the President.

Mr. MAHON. It makes no sense to say that Congress is not conducting itself or enacting the legislation which properly is desired, that the Congress is not doing an adequate job and, therefore, we must change our system of government and turn over to the executive branch not just the administration and execution of the laws, but also the making of all policy decisions which relate to our great country. Mr. BOLLING. Your bill is addressed to a fundamental question of what kind of a government we are going to have, not the specific question of what particular amounts of money are going to be spent in any given year.

Mr. MAHON. That is right. This bill does not claim to be conservative or liberal. It doesn't claim to be for more spending or for less spending. This bill gives Congress a procedure to work its will. Hopefully, it would work its will in a wise and appropriate way. This bill is supported by many very conservative people. It is supported by the great weight of opinion among the students of the Constitution of the United States, insofar as I know. I heard the dean of a very great law school the other day say that when Congress enacts legislation, then it is the responsibility, under the Constitution, of the executive to carry out the legislation."

Mr. BOLLING. I have no further questions.

The CHAIRMAN. Mr. Anderson.

Mr. ANDERSON. Mr. Chairman, the gentleman now in the witness chair enjoys great stature in the House of Representatives, and I want to congratulate him for the statement he has made on the grounds that I think he has made it clear that, rather than coming here for nakedly partisan purposes and simply heaping coals of recrimination on the