ing and sometimes conflicting constitutional, statutory, and other considerations. This is an area where the legislative and the executive branches share the power over a single object-Federal funds. I assure you that we in the executive branch who are concerned with these matters are deeply conscious of our responsibility to exercise the authority over spending in a manner which will be in accord with the Constitution and the relevant statutes and otherwise consistent with the national interest.

If the subcommittee has any particular questions concerning the exercise of the withholding power during this fiscal year, I will be glad to try to answer them, or supply material for your record. Thank you.

Senator MATHIAS. Thank you very much, Mr. Weinberger.

I said a few moments ago that I hoped that these hearings would be more than an academic exercise. I think by your presence here today, you will help us to insure that they will be more than an academic exercise, because as you yourself have stated, you have been not only the head of the Bureau of the Budget, but you play an active role in living out these problems. I think you can be uniquely helpful to us. I have a few questions which come to mind in the light of your statement.

On page 2 of the statement, you state that as you interpret section 9 of article 1 of the Constitution, the Executive has at least a "shared" responsibility for the expenditure of funds, that the expenditure of funds is an executive function. Would you like to expand on that a little bit for the subcommittee.

Mr. WEINBERGER. Yes, Senator, I will be glad to,

I do not think, just to start the discussion, that there is any way in which the management of $229 billion a year, with the various limitations and constraints that are upon us, can be handled in the way that the Congress or the country would want without precisely that, some management. Management necessarily involves from time to time decisions as to whether certain amounts can be spent safely, or whether they can be spent usefully, or whether they can be spent economically. And, as I mentioned, we feel there is ample authority that gives this general management power to the Executive. That is a power without which he could not carry on his responsibilities and I just think there is no way in which the Congress, for example, could provide for every single possible contingency that might arise on an hour to hour or day to day basis. So the President has to be something more than a rubber stamp or something more than a messenger boy, going to the Treasury and drawing out the cash and allocating it. There has to be a management discretionary function and that is the function which I think the Constitution and all of these acts give to the President.

Senator MATHIAS. But you, in your analysis, lay the emphasis on the management function. You make no reference to what has obviously been the basis of some impoundment, which is really a policy question..

Mr. WEINBERGER. Well, it is very hard in my mind to separate management from policy and say one is simply a technical chore and

the other involves the exercise of high discretion. They all are matters that involve policy. Policy inevitably is part of every budget decision and every fiscal decision. The budget is one of the greatest of the policy tools that the President has. So that I do not know of any way in which you can make a decision as to whether particular funds can or can't be expended in that particular month or week or year where you were not exercising to some extent and some degree a policy decision. I think it is inevitable.

Senator MATHIAS. But you would not go so far as to say that you feel that appropriations, congressional appropriations, are merely permissive?

Mr. WEINBERGER. I think that ordinarily, the basic view is that a congressional appropriation is a direction and is an enactment of the Congress, and it is to be followed whenever it is possible to do so. And it is followed in the great bulk of the cases. The amount and the percentage of withheld funds or managed funds that are not spent at the precise time designated is a very small percentage. It is, however, a percentage which has always been part of the management of these funds by the Executive, and I am sure always will be in the nature of things. Every administration has reserved or otherwise not used funds that are in one way or another available for use. It is a very small percentage, looking at the budget as a whole, but it has always been there because it is simply not possible to operate an enterprise of this magnitude without some executive discretion.

Senator MATHIAS. Although you cite the implication that might be drawn from the negative language of the Constitution, and that is the prohibition against withdrawing funds without a law, do you yourself adopt that interpretation?

Mr. WEINBERGER. I guess I do not understand your question, Senator. What possible interpretation do you mean?

Senator MATHIAS. Well, on page 2 of your statement, you say it is perhaps this phrasing of the Constitution which has given rise to the view that a law appropriating funds is permissive and not mandatory in nature.

Mr. WEINBERGER. I think the intention of the statement was to indicate that that is one of the legal bases for the withholding or the power to withhold or impound funds from time to time. There are many others. One of them, phrased more affirmatively. I mentioned a little further along in the statement. That is the President's obligation to take care that the laws be faithfully executed. I think all of this is inherent in the Executive power, just as the assignment to the President of the Chief Executive power of the United States carries with it by implication many discretionary authorities to enable him to carry that out.

I think this is one of the citation of the negative language the legal points that is referred to in our paper. We do not rest entirely on it.

Senator MATHIAS. When you carry that very argument over to the quotation which you cite on the top of page 3, the quotation from then Senator Harry Truman of Missouri, you can get some interesting consequences. The quotation which is given, if read in its full context would seem to reflect the feelings of a man who was interested

in efficiency of government and when he talked about not expending money, he meant not expending money unnecessarily. In the context of the full statement, he is not saying, you do not expend moneyrather, you do not withhold money-because as a matter of policy, you disagree with it. He says only that you do not have to spend all the money appropriated if the President, by good management, can accomplish the same ends with less money. Is that not really what he says?

Mr. WEINBERGER. I would not really think so, in view of his later action in which he did withhold funds for the reason that he did disagree with the object of the appropriation when he directed the Secretary of Defense not to spend money and to place in reserves the money appropriated for a 70-group Air Force.

Senator MATHIAS. Well, of course, he had a different

Mr. WEINBERGER. I am not the least interested in defending some action of Senator Truman many years ago or President Truman many years ago. What I wanted to point out was that there are many bases and much general agreement for the basic proposition that in the carrying out of the executive function, the President has to have and has the ability to impound or reserve from time to time some of the funds that are otherwise available for spending.

Senator MATHIAS. What interests me is that I do not think it is a good idea to quote Senator Truman as a witness for President Truman.

Mr. WEINBERGER. We quoted both. We quoted Senator Truman on page 3 and President Truman sometime later on page 6.

Senator MATHIAS. If it is probative at all, it is worth having in full. Truman went on to say:

We need more effective management to accomplish economies in government. The machinery of the Bureau of the Budget and the establishment of reserves has been available from 1921. From a practical standpoint, this is not the time to abandon existing procedure for establishing economies and savings to set up a new scheme.

Mr. WEINBERGER. I do not disagree with that at all. That is one of the bases on which we impound from time to time, and that is one of the requirements of the Anti-deficiency Act, that we do it for that purpose.

Senator MATHIAS. That is right, and Truman was relying just on that act and just on the restrictions of that act.

Now, again, in referring to the House Report 1797, that was a report on the Omnibus Appropriations Act of 1951, which replaced the Anti-deficiency Act of 1906 and which is, of course, the current basis on which the Executive would act today if it wishes to reserve funds. And it would seem that the only provision open to debate is the authority of the President to impound upon the findings of subsequent developments.

Now, you quoted, I think, a relevant section of the report. But I think it also makes it clear that the Executive has no policy determination as to what established programs should be impounded. It speaks in terms of economy within the stated objective, and it speaks in terms of keeping the program intact. And it talks about all necessary service with the smallest amount possible within a ceiling figure fixed by Congress.

Do you not feel this is relevant to the question of authority over policy?

Mr. WEINBERGER. I think one of the factors to be considered in whether or not a given appropriation should or should not be spent is whether economies can be achieved or whether conditions have changed, and the other items listed in the Anti-deficiency Act. But I certainly do not feel that the Anti-deficiency Act is the only basis upon which the President has the authority to manage the expenditure of funds.

Senator MATHIAS. Do you feel that the act itself does confer on the Executive any authority to decide which among several programs ought to be impounded in whole or in part?

Mr. WEINBERGER. Oh, I think that is absolutely inevitable from the reading of it. Yes, I do feel that way. There is nothing in the act which tells the President that he cannot do that or that simply directs him to pick and choose. It simply says that he does have, as we read it, that authority.

Senator MATHIAS. And you would feel that this is the basis of advice that you would give the President today? Say you have six programs of equal importance that the President might as a policy matter choose to exercise the right to impound. What would be the basis of determination? How would he choose?

Mr. WEINBERGER. It would all depend upon the requirements of the moment and what was the need for withholding, what was the total amount to be withheld, what programs were in such a stage of administration that they could best withstand at that particular point a reservation of apportionment, this sort of thing. There is not any one single criterion that would necessarily determine which program should absorb it all, or whether we should try to pro rate it, or what should be the case. There are different conditions, there are different stages of execution of various programs and the Antideficiency Act again is simply one of the bases upon which the President might act. There are many others.

One of them, of course, as I mentioned in the statement, is the ceiling on expenditures. We may be required to withhold expenditures to stay within the congressionally imposed ceiling. We may be required to withhold or impound funds from time to time until the debt limit can be expanded. We were within a very close margin by Federal standards, something like $400 million, of brushing against the debt ceiling.

So there are a great many different factors which come up from time to time, and none of the acts that require this action of the President specify any particular program that he is to pick out or is not to choose. It is a matter of examination of the stage at which a particular program is, or whether, as you pointed out, it may be best to apportion the total amount of withhold that has to be made over several programs. Any one of a number of considerations will be present on a given day that may change the next day.

Senator MATHIAS. I think you have asserted for us a number of reasonable criteria upon which a President may act. But what we have not really pinned down is what this does to the role of Congress, what this does to the predictability of the carrying out of

congressional intent, what this does to the relationship between the Executive and Congress.

Mr. WEINBERGER. Senator, I think that this whole matter can be over-emphasized in an undesirable way. I think the important thing here is to realize that while this power, we think undoubtedly, exists and has always been exercised since we have any record, it is still exercised with a comparatively small percentage of the total budget and it is usually exercised as far as I know on a temporary basis. So that what we are talking about is a withhold that, while at any given afternoon at the close of business, it may appear to be too large in toto, is still a small percentage of the budget and the conditions that have given rise to it may well change within a week or a month. So that it is a constantly shifting thing. It is not a means by which President after President attempts to thwart the will of Congress or anything of the kind. It is a means by which the Presidents over the years have tried to carry out what may be said to be conflicting intentions of Congress, but a means by which these Presidents have attempted to insure that overall the will of Congress is maintained. And the mere fact that the instant that an appropriation is available for spending it is not spent that instant does not mean that the will of Congress is being thwarted or that there has been any change in the historic and proper relationships between the branches. It does mean that the President, during that period of time and for those few days or weeks or months, is carrying out his historic role of managing the executive branch and taking care that the laws are faithfully executed.

Senator GURNEY. Will the Senator yield at that point?

Senator MATHIAS. Let me respond and then I will be glad to vield. As I pointed out initially, I think all of us are concerned with the analogy that might be drawn between domestic and foreign affairs. When I first came to the Congress as a result of the election of 1960, we were just beginning on the very unhappy phase of the buildup. in Vietnam which got underway during the Kennedy administration, reached its peak during the Johnson administration, and during this time Congress was lagging behind in its appreciation of the implication of the executive powers until at least we were faced with certain accomplished facts. Now, I would only say I think it has to be a matter of some concern to Congress when you look at the status of amounts reserved or otherwise unexpended as of 30 days ago which is inexcess of $11 billion which, to my knowledge, would be a high water mark for impounded funds. And I think you can understand the concern which has occasioned these hearings.

Now, the Senator from Florida.

Senator GURNEY. Well, I was curious, in following the line of questioning of the acting chairman here with you, Mr. Weinberger. As I understand your testimony, it is that all presidents have always had this power and used it. Is that true? Do you know the history of the authority?

Mr. WEINBERGER. Well, the figures that we have. Senator, go back to June of 1959, and I think they can be projected back before then. I would want to correct one statement that Senator Mathias made a moment ago, that it is a highwater mark.