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 you 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 today. 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.

Mr. WEINBERGER. Yes.

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, all 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

exactly what our problem is. Now, if the President is to exercise the kind of policy discretion which you have described, Mr. Weinberger, is he not in fact getting the benefit of the veto without any of the disadvantages of it? He is able, in effect, to just quietly scuttle a congressional plan?

For example, the Congress, just to give you an example in the extreme, the Congress authorized the construction of a national aquarium here in Washington. There was a good deal of difference of opinion within the Congress as to whether or not that was a good idea, but nonetheless, in accordance with all the due form of law, we made a favorable determination. The President has just quietly effected a veto without getting all the fish lovers in the United States upset by having to issue a veto message. The question is whether there is really an adequate congressional remedy, because by the time the Congress finds out this has happened, it may be the next year, the next session, or even the next Congress before you get around to providing a remedy. I think that is the focus of our interest here.

Senator GURNEY. Let's pursue that example if we may, just a moment, which you brought up, Senator. I think this does indicate an example that we might well go into if we can spend a moment or two on it here.

The Senator brought up the business of this aquarium for which Congress appropriated $10 million. The language also says that the expenditure of such funds shall be made subject to the condition that the Secretary of the Interior shall establish charges relating to visitation to or uses of the National Fish Center and Aquarium, such rates as in the Secretary's judgment will produce some revenue. That was the only condition put on it. Now, as I understand it, all the money has been impounded here recently.

Now, I can understand the President spending, perhaps, $8 million if he thought $10 was too much in view of these inflationary times. But where you impound the whole bit, it seems to me that is a matter of policy, that the President is substituting his judgment in this case for the judgment of the Congress on this aquarium. What would you have to say about this example?

Mr. WEINBERGER. I would say that undoubtedly he is exercising policy, Senator. There is just no question that every one of these decisions involves a policy decision at least in part. All of the appropriations can't be honored within the various constraints that I have mentioned earlier. So a decision as to those which cannot be fulfilled in a particular year is made by the President and the funds. are not released for those purposes.

There is another point here that I think should be borne in mind. That is that only about a third of this whole budget is really controllable or subject to any knd of basic decisionmaking by the President. Two-thirds of it is virtually uncontrollable in the sense that there is no room for discretion whether to spend or not to spendsuch things as interest on the national debt, social security, welfare, medicare, and all of those things. So that the primary area within which decisions can be made is very limited. and a very large number of items within that limited area where iudgments and decisions can be made inevitably involve construction. So that construction projects

nearly always do seem to bear the brunt of the withholding of appropriations that is necessary for all the reasons I have mentioned. Here it is a matter of exercising judgment as to which appropriation should be withheld or released and which not; the President has settled upon this particular decision in that case.

Senator GURNEY. But in this case, the administration has recommended termination of the project. I could understand the management problem if the President felt that something was more important at this particular time than fish. That is his right. Maybe something is more important than fish right now. And he could say, all right, let's hold off in these inflationary times and take care of the fish next year maybe, or 2 years from now. What I am saying is the fish have been thrown out of the window with the goldfish bowl because the administration has terminated the project. I think this is an example of what we are talking about.

Mr. WEINBERGER. Well, the administration has decided not to fund this project and thereby, certainly, given Congress another opportunity to consider the relative importance of the fish in this particular fiscal year.

Senator GURNEY. Well, are you saying that it has not terminated the project?

Mr. WEINBERGER. I would have to go back into the detail of this one. I know it has not been funded and we have not released funds for it. But the relative permanency of that decision I am not able to comment on this morning.

Senator GURNEY. Well, you might go back and complete your testimony on this particular thing for the committee if you would. Mr. WEINBERGER. All right, sir.

Senator GURNEY. I would like to know whether it has been terminated or not, because this is a good example of what we are talking about.

Mr. WEINBERGER. I do not know the details of this thing. I know that a great many of the reserve appropriations or impounded appropriations are just that. They are reservations, they are impoundments, which does connote a temporary suspension. Whether this is in that category or not, I do not know.

Senator GURNEY. Would you care to make a comment on the hypothetical statement? Let's assume that the fish are literally out the window and dead because the administration has terminated this project. I realize you do not know, that it may be a temporary cessation and maybe they are going to take care of the fish next year. But let's assume they are not going to. Would you care to give an opinion whether this is not exactly the same kind of confrontation with Congress that I was talking about?

Mr. WEINBERGER. Inevitably, each one of these decisions leads to some measure of confrontation of one kind or another. Just as the President is confronted with a statute that says spend and a statute which says adhere to the debt ceiling and one which says adhere to the outlay ceiling. There is a measure of confrontation in every one of these situations right here in this one.

Senator GURNEY. I know that but do you think this is a sound confrontation as far as the President is concerned?

Mr. WEINBERGER. I do not have any particular value judgment on this matter. I have no question in my mind that the President is fully within the legal rights and obligations and duties which he has as Chief Executive to take actions of this kind.

Senator GURNEY. Even though he has killed the fish.

Mr. WEINBERGER. The fish were never actually corraled in this case. Mr. COHN. Mr. Senator, may I come into this?

Senator GURNEY. Yes.

Mr. COHN. I do not have any feeling for or against fish, but it is my recollection that the original impoundment of that was in a prior administration.

Senator GURNEY. I do not make any statement about that. Maybe LB.I did not like fish, either.

Mr. CонN. Further, I do not think construction was ever started, so fish were never thrown out. Not one spade of earth was ever dug on that project. The money that was appropriated for it at the time this administration considered the project was insufficient to do the job because of rising costs in the interim. And in this administration's review of the factors that were required to faithfully execute all the laws, if you will, including the expenditure limit, the debt limit, and other things as Mr. Weinberger pointed out, construction projects, public works, bore the brunt of the deferrals, a large part of the brunt, anyway.

Now, at the same time, I would like to point out that Federal outlays for construction have been rising and are still rising and are budgeted to rise next year. It is just that there are many other additional projects which Congress has authorized to start and appropriated funds to start. And in trving to meet his responsibilities for all the laws, the President decided that some construction projects would not start at this time.

Now, in doing that, he had to pick and choose. Apparently, his choice reflected his view that fish were not as high priority as some flood control and navigation projects and other things.

So to answer the question you raised, I do not think it is a good example of something where the issue was clearcut. That is the question vou just asked.

Senator GURNEY. Certainly you have to impound waters before you can get fish. I understand that.

Anyway, would you furnish for the record whether this project has been terminated and is out completely, because at least it will give us an example of what we are talking about here and maybe the subcommittee can make some comments on it when we finish our hearings.

Mr. WEINBERGER. Yes.

(The information referred to follows:)

NATIONAL FISHERIES CENTER AND AQUARIUM

The 1972 budget provides for termination of plans to build the National Fisheries Center and Aquarium. This is reflected on page 53 of the Budget in a listing of Selected Economies and Reforms in the 1972 Budget. The 1972 budget request includes no funds for further planning activity. The budget fore casts that $9.1 million originally appropriated in fiscal year 1966 for construction of the aquarium will remain unobligated through fiscal years 1971 and 1972.