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Senator GURNEY. Go ahead, sir. That is the point I wanted to clarify.

Senator MATHIAS. I think it is a useful point. Of course the modern relationships between the Congress and the executive branch in large part did originate with the Franklin Roosevelt administration and we are wrestling with some of the results of those relationships today.

To get back to where we were, I take it that you assert the President's power to impound on the basis of his authority in article 2, section 3—to faithfully execute the laws. But it should be noticed the Constitution also provides that “the Congress shall have the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by the Constitution in the Government of the United States or in any department thereof." Now, the Anti-deficiency Act of 1906 and the subsequent enactments that you have cited would all appear to be that class of legislation. Do you believe that the Congress, by appropriate legislation, could alter this practice which we have been discussing! Mr. WEINBERGER. Yes.

Senator MATHIAS. I am not suggesting that I would be in favor of this, but what if we should provide that these expenditures be automatic?

Mr. WEINBERGER. I think we would have to examine what Congress left on the books in such a contingency. If the Congress left the debt limit on the books, if the Congress left the ceiling expenditure on the books, we would still have to try to operate

Senator MATHIAS. Then you would have conflicting congressional actions contradictory actions.

Mr. WEINBERGER. You would have different mandates that the President would have to carry out as he has at the moment.

Senator MATHIAS. Does the Senator from Florida have any further questions at this time?

Senator GURNEY. Yes.
Senator MATHIAS. I have several more but I will reserve them.

Senator GURNEY. I want to assure you first of all, Mr. Weinberger, that I am not trying to engage in a debate on this. What I am interested in is the history of this thing. Mr. WEINBERGER. Surely.

Senator GURNEY. I want to find out when this began and what other presidents exercised this authority or whether it actually is a more recent action of the executive branch of the Government.

It seems to me that we have really two main points here. One, as you have well put it, is the management of funds and I do not think anybody would quarrel with that, that the Executive must manage funds and that means a great many things. If, say, a billion dollars is appropriated for a new program, obviously, you could not spend that amount all at once until you get machinery set up to do it. Mr. WEINBERGER. That is part of it, yes, sir.

Senator GURNEY. I appreciate that. But then on top of the management of funds, it seems as though there is another point. That is a denying of the will of Congress in some cases where funds are impounded. Let us get to that point.

What is your opinion there? If clearly the President does not want to spend money because he disagrees with the Congress for a certain program, do you think he has the right to do that?

Mr. WEINBERGER. Well, Senator, there is one problem that I think perhaps I have not emphasized sufficiently. That is that the whole nature of the appropriation process is such that Congress is, in one way or another, virtually prevented from taking an overall look at the effect of their total actions. The Congress acts on a single appropriation bill for a particular agency or a particular activity. There is only one agency in the Government that has, in a sense, the overall responsibility for the overall picture at any given time. When Congress acts on the first two or three of four appropriations bills and then starts acting on the fifth, there is not any automatic machinery by which the total outlays required at that particular time are now available to the Congress. They can be found; they are there. But there is not any one agency in the Congress or elsewhere in the Federal Government besides the Office of Management and Budget where the overall picture is constantly available and where, because of the President's unique responsibilities, it has to be available to him.

As a result, it may very well appear to Congress that by reserving the spending of a portion of an individual bill, there is some attempt to thwart the will of Congress. Whereas what is actually happening is that in our overall examination and in our knowledge that this particular appropriation will take us over a ceiling or over a debt limit or to a point where it would be clearly inflationary to let it go that particular month or year, it is necessary to take other action. These reports, therefore, are made to the President and his action follows, because he has the overall responsibility and the overall knowledge of what the total expenditure picture of the Federal Government is at any one given time. So that while an individual action on a bill may appear to the sponsor of a bill—and I have been in the legislature in California and I am familiar generally with the appropriation process and with the desires to have money spent once a bill is finally passed—it may appear to be simply a refusal to do what Congress has ordered, the problem is Congress has ordered several things to be done, and the President has the overall responsibility.

I would like to see many changes in the appropriation process that enable Congress to have before it an overall total and a running picture such as we have to have at all times. And I think there would be much clearer understanding of the reasons for temporary impoundments or reservations on the President's part if that were the case.

I think that it has to be looked at in that broad overall context and not from the point of view that here is a President who is seizing this means of blocking Congress from getting something that it wants that he may not want. There is no feeling of that kind that accompanies the impoundment of the funds that are now on the books, though I think it is fair to say that that may have been the case in previous administrations from time to time, as evidenced by some of the statements made that we have quoted in the statement I made this morning.

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This is a requirement that the President has of insuring that the overall fiscal running total is known, and is observed, and that the warning signs which come up at various points in the spending process are heeded. That is esentially what he is doing when, from time to time, various appropriations are temporarily withheld or impounded for a few weeks or a few months.

Senator GURNEY. Well, I appreciate that and that is essentially what you testified to before. But that really was not my question. My question was this: Let's assume we do not have any problem with the debt ceiling, there is no problem about prudently spending the money for a particular program. And I know we can give examples of this if we want to point our fingers here and there.

I am not talking about the present administration. But you have a clear case of where the President does not want to go ahead with a particular program for which Congress has authorized and appropriated money. My question was do you think the President has the right to stop the money in such a case ?

Mr. WEINBERGER. I think there is a basic right to withhold the appropriation if the other factors are present. You have posed a question where the other factors are not present.

Senator GURNEY. That is right, because I want to get to the heart of this particular problem.

Mr. WEINBERGER. And it is simply a naked question of whether or not the President can withhold funds from a program which he personally opposes.

Senator GURNEY. That is right.

Mr. WEINBERGER. My opinion on that is worth very little. I think the important thing is the actions that various presidents have taken in the past and uniformly that I know of the presidents in the past have taken actions that indicate they do feel they have this basic power. I think that the important fact here is that the Congress has the ability to override that if the action is indeed contrary to what the Congress wishes, and they have done that on occasion.

Senator GURNEY. Well, but does it? Let me give you an example here, again from the Library of Congress Reference Service about this matter. I do not know whether it is a fact or not. I am simply using it as an example.

Just prior to the outbreak of World War II, the Armed Forces Committee, and particularly Senator Russell, was interested in the ROTC's around the country. I guess he saw trouble arising on the European scene. A blind man could have seen it. It was going on for some years prior to our involvement. So he and some others in the Senate, particularly, thought it would be a good idea if we turned out a whole lot of ROTC officers.

Well, for 3 successive years, the then President impounded these moneys and did not go ahead with this ROTC program, although Congress continued to put up the money year after year after vear. I think this probably was a pretty clear case of what I am talking about. We did not have any debt ceiling problems then, this was not a matter of management. This was purely and simply a matter of a difference of opinion between the President and the Congress. This is what I am talking about. This is the example.

Mr. WEINBERGER. Well, Senator, the example which you have cited is an example which calls into discussion the authority of the President as the Commander in Chief of the Armed Forces of the United States, and I think there is a separate, distinct power there that may not be applicable in some other areas. But in that specific example that you have given, it would seem to me that the President has the basic right.

Senator GURNEY. Well, let's leave that out. We could give other examples. I just happened to see that because it is in the brief here, but I am sure there are many other examples where his power as the Commander in Chief is not involved. I am talking about that situation. Do you think that the President has the right to say, "No, I do not want this done, so I am not going to spend the money even though Congress wants it done.”

Mr. WEINBERGER. Well, I think the simple way to phrase that is to say that there are ways in which Congress can direct the activities and the actions under an appropriation or other measure that would prevent the President exercising what I believe generally is his discretion. But if the Congress, by mandatory language, mandatory spending language or otherwise, removes that, discretionary authority of the President, then I think that absent a Commander in Chief problem or some other specific thing such as I mentioned before, the Congress would have it within its ability to direct the actual spending.

Senator GURNEY. I understand your testimony, then, to be this: If Congress says, "Mr. President, you will spend this money for this and we mean it," then that would override the discretion of the President?

Mr. WEINBERGER. It would seem to me that that is the case in the absence of some other special circumstance which by hypothesis were excluded.

Senator GURNEY. Of course, it occurs to me that that is sort of an unnecessary exercise in confrontation between the Congress and the President. Leaving prudent management aside, it would seem as though the President ought to carry out the will of Congress in these matters.

Mr. WEINBERGER. Well, if vou leave out the prudent management, Senator, then you would have a situation in which every single expenditure which Congress authorized or appropriated would have to be made the immediate instant that it became available, and you would effectively deny the President any kind of effective management power.

Senator GURNEY. Well, I would not say that. I mean my concept would not be that at all, even though I am a Member of the Congress and so on the other side of the fence. I would think that in many instances, I could understand the President's prudent management, even now, with this administration, with moneys being withheld. I can understand the President, fighting inflation, has to take a look at these things and perhaps not spend it all todav. I understand that. But I am talking about this clear-cut case and I am sure that our subcommittee staff can turn up a number of examples where this has occurred. It does seem to me, and I think that is one of the reasons for these hearings, that the President ought not to have that power.

Mr. WEINBERGER. I do not know that we have any difference of opinion at all as long as you have in mind, as you said a moment ago, the necessity of the President preserving and impounding expenditures from time to time in the interest of controlling inflation and other general executive duties, management duties, and things of that kind. Then you pose the other side as the clear-cut case where he does it. And I guess our only problem is to understand or define what is the situation when his ability, for example, to control inflation would enable him to impound an appropriation and what is the clear-cut case in which he would not be able to use this power. That is the only concern I have.

This power should not be used lightly and it is not; it is used on a very small percentage of the total budget. But the ability of the President to do this, I think, has to be retained. Though certainly, it should not be viewed as an excuse for a President not doing something that the Congress wants when the overriding necessities that give rise to a reservation are present.

Senator GURNEY. Well, I am glad to hear you say that and I realize that you have gray areas here that Congress and the Executive may well disagree on from time to time.

may WW EINBERGER, But as I underdent managethe Con

Senator GURNEY. But as I understand it, then, really, this perhaps is the situation: You have the prudent management concept and that covers a great deal of ground. And then, if the Congress disagrees with the President in his prudent management; if the Congress says, Mr. President, we want you to spend this money for this project and not withhold it, Congress has the right to do that, and it is your opinion, I take it, that the Executive then may not deny that mandate of Congress.

Mr. WEINBERGER. Well, that situation has arisen in the past and that has been the result, yes, sir.

Senator GURNEY. Then there is another area here where we do have a clear-cut example that everyone, perhaps, will agree has nothing to do with prudent management, but the President disagrees with Congress. I take it that you opinion there would be in that instance, if you had that clear-cut case, the President would exceed his authority also if he impounded these funds. Is that correct?

Mr. WEINBERGER. Well, that's my opinion for what it is worth. But the problem there would be whether the situation is also one of those in which there are other reasons for the President's action. If there are no inflation problems to worry about, if there is no debt ceiling to worry about, if there is no ceiling expenditure to worry about, ali of these things, but the President simply decides he does not want to spend money for a purpose for which Congress has appropriated it, then, I would think his authority is very much more shaken.

But a very important part of all this discussion, Senator, is that someone has to decide whether or not the President is properly executing powers and authority which by our definition he possesses. It is important that the President himself reserve the right to make these decisions.

Senator MATHIAS. Let me come back at that very point, because I think we are close to the nub of this thing. The Senator from Florida, I think, has done a very useful job here in highlighting just

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