And then the President proceeds to substitute his judgment for that of the Congress by not expending the funds authorized and appropriated.

I question the statement you have made at the bottom of the first page, that there is no judgment being made by the Congress so there is no substitution. I think there definitely is a substitution of judgment.

Mr. RHODES. Of course, the paragraph which follows on page 2 explains that last sentence. Dealing with REAP, I don't know why the President changed his mind. I suppose he looked at the fiscal situation and found it was worse than he thought it was. He had to cut down on some programs and, therefore, he cut this one. However, the bills originally passed by Congress and signed by the President, did not contain mandatory language. You will also recall that the Congress has quite recently passed another bill which does contain mandatory language, which I assume the President will veto, if he hasn't already done so. If the Houses of the Congress override that veto, then the President is faced with a decision as to what he will do. I, of course, have no way of knowing what he will do. It might be that this will be the court case which has been alluded to several times during the meetings of this committee, to decide whether or not the Congress has the authority by mandatory language to make the President spend money which he doesn't want to spend.

Mr. MATSUNAGA. In the case of REAP, before you get away from REAP, isn't it true that it was only after the President had substituted his judgment for that of the Congress that it was necessary for the Congress to change permissive language to mandatory language? Mr. RHODES. You are absolutely correct. You have stated the case just the way it occurred, according to my memory. If the Congress' action in this particular instance would be upheld by a two-thirds vote upon veto, then this opens up a brand new area of relationship between the executive and the legislative, which I assume will eventually be decided by the judiciary. It may not be, but it may well be.

However, one of the judgments which I was talking about-a decision which we don't make-is that we will allow the operations of the Government to be either inflationary or deflationary. We don't say that if we are going to spend more than we take in that we should have higher taxes, or that we will just relax and have some more inflation. We never make those decisions. As long as we don't make these important rational decisions, someone is going to make them for us. I want a mechanism established for us to at least say, "All right, so we are spending too much. We want to do it that way."

Mr. MATSUNAGA. I might say in connection with the last comment that I would be for a measure where the Congress sets a ceiling on spending also, even to the extent of accepting an amendment proposed by Mr. Anderson that we include a ceiling in this very proposal.

I regret very much that expressions such as "political circus" have been thrown into the discussion for the reason that I feel, and I am sure you feel, that there is this basic issue which must be settled between the executive and the legislative, and it should not be made a partisan political issue.

The CHAIRMAN. Mr. Clawson.

Mr. CLAWSON. Thank you, Mr. Chairman.

Mr. Rhodes, the very fact that the language of cur legislation carries no mandatory requirements, and then we turn around and in the case of REAP do pass a bill that is mandatory, would not that reflect that we have recognized the province of the President to make a determination whether or not to spend the money?

Mr. RHODES. I think certainly you could draw that inference. It is a very reasonable inference to draw.

Mr. CLAWSON. You have already made some allusions to the partisan political decisions which prompt this legislation and I think that might be revealed, too, in connection with the way it has been handled. It has now been introduced at this point in history when you can go clear back to the time of Thomas Jefferson when it was not considered in this manner.

Mr. RHODES. I agree with the gentleman from California. I don't know why it has suddenly become unconstitutional, but in some minds it apparently has.

Mr. CLAWSON. I am pleased that you asked to insert your recommendations. I was going to ask you to, because you do, on page 5 of your formal statement, refer to basic problems, apparently in the relationship between the executive and legislative branches. I was going to ask for your recommendations to meet these basic problems. I think all of us on the committee and every witness recognizes that we do have problems in connection with this relationship. Is this the insertion that you have placed into the record?

Mr. RHODES. Yes. The chairman was kind enough to let me put it in the record.

Briefly, it calls for the imposition of a ceiling early in the session of each Congress, that ceiling to be a figure which would be originally recommended by the Joint Economic Committee as, the optimum figure for expenditures insofar as the economy is concerned, so that the Government's actions neither overly inflate nor deflate the economy. The Appropriations Committee then would take that figure and refine it along the lines of an irreducible minimum of that amount of money required by the Federal Government for its operations. It would submit the amount to the subcommittees and then each bill as it is brought before the Congress would be subject to the limitation which is placed on the subcommittee's bill.

Mr. CLAWSON. I thank the gentleman.

Thank you, Mr. Chairman.

The CHAIRMAN. Thank you, Congressman Rhodes.

Are there any further questions from anybody?

If not, thank you.

Mr. RHODES. Thank you, Mr. Chairman.

The CHAIRMAN. We will now hear from Congressman Evans of Colorado. You may proceed.

STATEMENT OF HON. FRANK E. EVANS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF COLORADO

Mr. EVANS. Thank you, Mr. Chairman.

Mr. Chairman, I appreciate the opportunity to appear before the Rules Committee to discuss the questions of the Presidential impoundment of funds appropriated by the Congress.

This issue, in brief, is whether we are going to have a Federal Government based on the mutual cooperation implicit in the first two articles of the Constitution of the United States.

The Honorable George H. Mahon, chairman of the House Appropriations Committee, has introduced H.R. 5913, to curb the President's ever-increasing power over the appropriations process. The members of this committee are well aware of the purposes and effects of this bill. It differs somewhat from a similar bill introduced in the Senate by the Honorable Sam J. Ervin, Jr. The Mahon bill says that an impoundment succeeds unless the Congress overrides the impoundment with the passage of a joint resolution within 60 days after the President impounds a certain appropriation; the Ervin bill says that an impoundment fails unless the Congress specifically approves the impoundment.

The current situation is intolerable. The President impounds with impunity and we in Congress search for ways to force the President to carry out his constitutional duties to execute the laws of the United States. As important as it is to forge a united congressional front, I feel that H.R. 5913 suffers from a major defect. That defect is that the passage of the bill would probably constitute a major concession of congressional authority over the legislative process. In short, the bill concedes to the President the basic right to impound funds for general fiscal, economic, or policy reasons.

An appropriation bill, if passed and signed by the President, is a law. The Constitution states that "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." (Art. I, sec. 1.) The Constitution further states that, "No money shall be drawn from the Treasury, but in consequence of appropriations made by law." (Art. I. sec. 9; emphasis added).

Consequently, the starting point of any discussion is that the power to spend money-and surely, by any stretch of logic, the authority not to spend money-is vested originally in the Congress. Any delegation of that authority must come from the Congress itself. That delegation of authority to, in effect, wield legislative power, must be made by clear standards which are not subject to the constitutional infirmity of vagueness. To paraphrase the U.S. Supreme Court in A.L.A. Schechter Poultry Corp. v. U.S., 295 U.S. 495 (1935), "the discretion of the President" must not be "virtually unfettered" through congressional abdication of its own legislative authority. For those who might argue that the doctrine of unconstitutional delegation of authority is now moot. I would suggest reference to the recent case of Zemel v. Rusk, 381 U.S. 1 (1965), where the Supreme Court reaffirmed the doctrine, especially in the area of domestic legislation. Second, the powers of the President, while vast, are not inherently broad in themselves. Congress has delegated an enormous amount of authority to the President over the years. But the theory expressed so many times by the Nixon administration, that somehow the President has broad "inherent" authority in many different areas, surely is wrong. In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), the Supreme Court emphatically ruled that President Truman lacked the "inherent" constitutional authority to seize the steel in

dustry. Surely, as Mr. Justice Black stated in a separate opinion in a 1965 case, Youngstown stands for the firm principle that the President's authority is not inherently broad, but rather is limited either to those specific powers enumerated in article II, or to the "faithful" execution of laws passed by the Congress and signed by the President. While the recent wiretapping case, U.S. v. U.S. District Court, 407 U.S. 297 (1972), while the Court ruled 8 to 0 that the President lacked the "inherent" authority to wiretap on citizens without a court order, went off on fourth amendment grounds, the case is noteworthy here for the Court's flat refusal to grant the administration's unprecedented and dangerous claim of the inherent authority to wiretap without a court order.

In other words, the President, as well as the Congress, must be guided by the fundamental constitutional principle that the Federal Government is a government of limited, enumerated powers.

What is the relevance of this discussion? We often hear it stated that the impoundment issue is going to be decided not in the courts but, rather, in the political process. While this may be true-the possibility that the Supreme Court would decline to hear a case arising from an impoundment, while in my opinion not very strong, still exists, on the grounds of a lack of justiciability, the same being a "political question"-it is also quite possible that the Supreme Court will hear a case, or several cases, in the fairly near future. Several cases have already emerged, including the city of New York's challenge to the failure of EPA to commit contract authority funds under the 1972 Water Pollution Control Act amendments, the suit by Minnesota farmers against Farmers Home Administration for termination of the Agnes/Rapid City emergency loan program, where the U.S. district court has ruled against the President on the right to impound an entire program, and the suit in Missouri over a freeze of funds from the highway trust fund.

Thus it is important that the Congress stand firm against the dangerous theory that the President has the inherent authority to impound funds.

The Supreme Court will look for guidance not only to the words of the Constitution and of past decisions, but also to experience, specifically the workings of the interrelationship between the legislative and executive branches. The Court will want to know what the Congress' attitude toward this issue is. Does the Congress believe that the President has even a modicum of authority to impound funds without a specific delegation of such power by the Congress? In my opinion, the Court might believe Congress' answer to be "Yes" unless Congress makes it quite clear in every single reaction to the Presidential impoundment that it does not concede in the least the President's inherent authority to impound funds.

Now, of course, the Anti-Deficiency Act allows the President to` impound funds under very specific circumstances, "to provide for contingencies, or to effect savings whenever savings are made possible by or through changes in requirements, greater efficiency of operations, or other developments subsequent to the date on which such appropriation was made available." (31 U.S.C. 665 (c) (2).) However, these are carefully circumscribed circumstances which do not spell out

a broad, inherent authority to impound. This is the opinion of the Comptroller General of the United States, the Honorable Elmer B. Staats, as stated in recent testimony before Senator Ervin's subcommittee. In addition, of course, when Justice Rehnquist was Assistant Attorney General in 1969, he wrote a memorandum to a White House official that the President lacked the inherent constitutional authority to impound. Now, the Nixon Administration states that Mr. Rehnquist was wrong. The question is up to the Supreme Court to decide, but surely it should not be the Congress, on its considered reaction, which concedes an iota of such authority.

Mr. Chairman, I fully support the principle of challenging the President at every opportunity when he seeks to evade his constitutional responsibility faithfully to execute the laws. But I am quite concerned lest we inadvertently concede away a principle that lies at the very bedrock of our own constitutional authority.

Consequently, I earnestly urge the members of this committee to consider an amendment to this bill which would clarify the very basic point I have been discussing. Such an amendment could take the form of a statement that the Congress does not recognize the inherent constitutional authority of the President to reserve funds for general fiscal, economic, or other policy grounds, and that the only authority which the Congress specifically recognizes is that which it has carefully delegated to the President under the Anti-Deficiency Act or under the terms of this bill.

Further, I would suggest an amendment which could reverse the procedure outlined in the bill. Rather than state a presumption that the impoundment will succeed unless the Congress disapproves of it, I would prefer a presumption that the impoundment will fail unless the Congress approves it. The second point is, of course, more a question of clarifying the power of the President that the Congress specifically delegates to the President in this bill and the Anti-Deficiency Act.

The first point goes to the very heart of the issue, and I earnestly suggest it to the committee's attention. We in Congress have more than our own power to defend. We also have a responsibility to help restore the system of a proper separation of powers outlined by the Founding Fathers. It is a system which we must simply force the President to respect, if such respect is, as is apparent, so sorely lacking.

I would also like to say just offhand, Mr. Chairman, that I agree with the statements made by so many of the witnesses that Congress has to do that which it can do to bring a responsible approach to our appropriating of funds, to looking at our debt, deciding on taxes, and the question of what spending limitations we are going to undertake as a matter of policy. I think cur colleague, Mr. Rhodes, from Arizona, has posed the most interesting subject for study in this regard where, as Mr. Rhodes said a few moments ago, we make policy decisions in the Congress at the beginning of the year on the amount of the budget, the amount of spending, what our debt will be, what we do in regard to taxes, and then at the end of the year when we see what we have done in appropriation bills and other actions we take whatever action is necessary to bring our action within the guidelines set down in our original decision. I think we have to do that.