This has been proposed because it is now not feasible to build the facility, as envisaged in the aquarium's authorizing legislation, with the funds which are available. This is due to a combination of: 1) long lead time between authorization and the time when it was actually possible to construct the aquarium; 2) delay in solving access and parking problems at the East Potomac Park site; 3) the need to then postpone construction further because of overall outlay limitations imposed by the Congress; and 4) rising construction costs within these periods.

Senator MATHIAS. This colloquy, I think, has been useful. I think Mr. Weinberger has painted a very graphic picture of a President standing at a crossroad with several sets of directions from Congress. He then feels that he has the complete discretion to use any one of these avenues; and in fact, the mere existence of conflicting directions perhaps gives him the oportunity to make policy judgments. I think you have pointed the way to some very constructive work that this committee can ultimately do.

I would not say that it goes as far, however, as you went in your statement on page 9, where you said that this is an area in which the legislative and executive branches share the power. Because I think that is something else again.

Now, I do want to get to our distinguished panel of consultants, but let me ask you just one final question: In the light of this colloquy, would you care to make any comment on the concern I have expressed in my statement over the impact of such a state of affairs on revenue sharing, where, in my mind, a President's right to turn on and off the faucet could have an enormous political impact in this country? Mr. WEINBERGER. Well, Senator, I would simply say that the President's attachment to revenue sharing is so widely known and is so deep that I would certainly think that the very last source of necessary impounding or withholding that he would ever want to reach would be revenue-sharing funds.

Senator MATHIAS. You do not think that any one of these other justifications for impoundment would be employed at the exepense of revenue sharing?

Mr. WEINBERGER. Well, I am not, certainlv, going to commit a President for all time as to what he will or will not do with the authority and the obligations and responsibilities he has. All I am saying is that the President's desire to have revenue sharing adopted, and his attachment to it, and his deep philosophical commitment to it are so widely known that it seems to me it would be the very last item that he would want to tap in any kind of necessary impounding or reservation of funds.

Senator MATHIAS. Well, I would only say in response, and I say it in the friendliest possible wav, that I believe a necessary ingredient of the passage of revenue-sharing legislation is going to be a very firm understanding between the President and the Congress that this is not going to be the area in which there is any exercise of any implied nowers to impound.

Mr. WEINBERGER. That may well be an understanding that the President would want to enter into with the Congress. But that would have to be, obviously, his decision.

Senator MATHIAS. That is one that I suspect we will be coming to. But now Professor Johnson.

Mr. GURNEY. May I ask just one question on this revenue sharing? Senator MATHIAS. Senator Gurney.

Senator GURNEY. I agree with you, Mr. Weinberger, that certainly President Nixon would not impound revenue-sharing moneys, but what about whoever succeeded him? You know, he is not going to be President always. In fact, he can only be President for 8 years at the most. Suppose whoever succeeds him decides that revenue sharing is for the birds. Would he have the power to impound all moneys that go into revenue sharing?

Mr. WEINBERGER. My personal feeling is that if Congress does not wish this to happen with a specific item, it is within the congressional power to prevent the President from exercising this authority on a specific item. That is, however, simply a gratuitous personal opinion, and I do not know what the courts would rule with respect to the President's inherent powers in the face of such an attempted prohibition. I know that this President has never exercised the authority with respect to withholding or impounding funds where Congress has required mandatory spending. It would seem to me that if that is the desire of Congress, there is an ability within Congress to explore that route with revenue-sharing measures.

But I reiterate that the President is so anxious to have revenue sharing adopted, and is so absolutely convinced of the rightness of the policy, that I cannot conceive of his utilizing any authority to try to slow down the operation of revenue sharing once adopted.

Senator GURNEY. What you are saying is, then, if we ever get around to passing revenue sharing and feel pretty strongly about it, we had better say henceforth and hereafter, no President shall impound any funds that have to do with revenue sharing.

Mr. WEINBERGER. Well, Congress has done that with other particular measures, and that is certainly a course that is open to Congress if that is the desire that the members want to put into effect. Senator GURNEY. That is all.

Mr. EDMISTEN. Professor Alexander Bickel, our senior consultant. Professor BICKEL. Mr. Weinberger, it is the legal position that I would like to quarrel with you on for a moment or two, if I may. Since we are merely exchanging advisory opinions, I understand that you feel hesitant about some areas of this. I think I understand the problem, the need for management, and the inevitable judgments about priorities that arise therein.

But would you agree, to start with the Constitution, that the clause on which you rely in your statement, "No money shall be drawn from the Treasury, but in consequence of appropriations made by law," is the negative side of the coin and that the affirmative power of Congress-indeed, the power to which the phrase "appropriation made by law" has reference-is the enumeration of powers in section 8, of course, of article 1, which enables Congress to do all the things it does, make all the policies it makes, and, in addition, to make all the rules that are necessary and proper to govern everyone else in the exercise of functions under this Constitution. including Presidents. If that is the position, which is rather an inversion, I may say, of the position put in your statement-if that is so, I then understand you correctly to concede that as the administration has previously conceded in the opinion by Assistant Attorney General Rehnquist, mandatory appropriations are in effect decisions on priorities made by Congress and that these have to be obeyed; then we are left

really, if I understand you correctly, with the ball in Congress' court entirely, except as you make allowance for the power of the Commander in Chief. I wonder if I could ask you to explain that a little more, what kind of reservation independently

Mr. WEINBERGER. Well, I will, but I would like to clarify a few of the points I understand you to make, first looking at the language in the negative and then recasting it in the affirmative.

What I think you are saying is that the President can't withdraw money from the Treasury in the absence of an appropriation; that he has no affirmative authority to spend money without an appropriation. I would certainly agree with that.

As far as the language that I mentioned in the statement, it seems to me that the language, while cast in the negative, does support the basic idea that there is no requirement that appropriations be spent. There is certainly a requirement that money not be spent without an appropriation, but there is no requirement-indeed, the negative cast of the language, I think, supports the basic argument we madethere is no requirement that the appropriation be spent.

As far as the President's power as Commander in Chief is con cerned, I think that there is a good legal argument, though you and I are, as you say, quite correctly, simply exchanging advisory opinions; that the overriding powers that have to go with the Commander in Chief's authority are such that they may well be in a separate category and that the powers incident to that authority are not subject to other powers or limitations in the Constitution.

I think there is one point that ought to be emphasized in another matter you have mentioned and it is important in the context of our simply exchanging advisory opinions. What I have said in response to Senator Gurney's questions was that if the Congress ordered money spent, the President would then have to spend that and I mentioned that from time to time that was the course Congress had taken and it has not been challenged. I think that if a President thought that his executive prerogatives were such that the Congress had no right, in view of the separation of powers to direct him under any and all circumstances to spend money, and if a President wished to challenge that, then the judicial branch would have to decide it. And certainly, I cannot by any casual opinion today make any such decision for the judicial branch.

Professor BICKEL. If I may pursue that for a moment, could you unpack the Commander-in-Chief for me just a little more? I understand it in the normal

Mr. WEINBERGER. I just do not see any way in which the President can carry out the responsibility to be Commander in Chief of the Armed Forces of the United States and still have to wonder whether an appropriation that is given to him to spend for a particular item should be spent at that given time. I think that there is an overriding general discretion.

Professor BICKEL. The power of the Commander in Chief as it has been understood up to now in the American Constitution divides up the function of Congress to establish armies and the function of the President as their tactical, if you will, strategic cammander. I do not see how the power of the Commander in Chief can override an otherwise-for the sake of argument conceding that an otherwise-existing

power of Congress to force him to spend money any more than it can override an otherwise existing power of Congress to force him not to spend money. Obviously, it is going to interfere with his view of what overall policy is, but he is not independent.

Mr. WEINBERGER. I think we could discuss it more profitably if we had some specific example.

Professor BICKEL. President Truman's action in the matter of the 70 aircraft that President Truman did not want and the Congress wanted. Would there be something in your opinion in the particular function of the Commander in Chief that sets that apart?

Mr. WEINBERGER. I think it gives a stronger basis for the President acting in a situation of that kind than perhaps he would have where the Commander in Chief powers were not at stake.

Professor BICKEL. Without beating it into the ground, I am puzzled to know where that stronger basis originates or what its source is.

Let me come back for a moment to what we started with. I think, for whatever it is worth, that we do have a disagreement. I was trying to point out that of course, if you start out with a negative provision. if you start with a provision in the Constitution that says the President may not spend money unless Congress authorizes it and you draw from that negative provision directed at the President the affirmative power of Congress to make appropriations, you have a very different constitutional picture than the one which, in my judgment, is the true one, namely, the statement first in section 8 of the affirmative powers of Congress to make laws and then the statement that except in pursuance of one of those laws, you cannot spend money. That is a very different picture, I would think.

Mr. WEINBERGER. I think the problem is, Professor Rickel. you have to start somewhere and we started with that particular basis of the authority for the President. It is not necessarily the most important.

Professor BICKEL. Reading the Constitution sequentially might be

one way.

Mr. WEINBERGER. You could do that or you could do it alphabetically. There are any number of ways or bases on which the President has the authority to act. I do not feel that we have to stand on that one as the first and preeminent one. But it is one of the indications to us that the President has this authority which he, and as far as I know almost every other President, has exercised from time to time.

Professor BICKEL. May I pursue just two more points, Mr. Weinberger? First, a minor one, the ceilings which you have mentioned as entering into the President's indoments, and they may from time to time. Do I misunderstand you, is it a misconception on my part, that the ceiling that is imposed by Congress, and I guess has been for 2 years or so now, is a ceiling that consists of no more than this, namely, the taking of a figure in the President's budget submission and the statement to the President that his spending ceiling is that figure minus or plus what Congress may do? And if I do not misconceive it, it does not seem to me to be much of a factor.

Mr. WEINBERGER. I think it is a major factor. The ceiling essentially, Professor Bickel, is an end product of a group of computations, some of which are made in the general way which you have

described. The actual legal, total effect, however, is that when you approach or exceed that figure which is derived from these various computations, you are violating the law if you allow expenditures or outlays to exceed that sum. That is the practical problem which the President has. The actual construction of the ceiling may vary. There is a certain elasticity to it, depending on particular appropriations and some controllables and uncontrollables, that sort of thing. But in the final analysis, there is a figure beyond which the outlays may not go. And if you add up all of the budget authority and all of the ability to spend, it would far exceed that figure. Consequently, a management job or a job of complying with the will of Congress has to be done. And it is in the course of performing that job that the President may very well have to reserve and withhold some expenditures.

Professor BICKEL. Mr. Weinberger, I genuinely do not understand. Mr. WEINBERGER. Mr. Cohn indicates he would like to try.

Professor BICKEL. Let me just show you the place where my ignorance most obsesses me.

How can a ceiling which consists of figures that are the sum total of authorized spending for that year ever be exceeded by the President and what is his problem if the ceiling consists of no more than the figure he gives plus or minus whatever Congress adds to it?

Mr. COHN. The reason, sir, is that it is not as simple as you posit it to be at the start.

What is the figure that the Congress starts with? It is a figure in the President's budget.

Professor BICKEL. Right.

Mr. CонN. Neither the President nor Mr. Weinberger nor I nor you nor the Congress have the gift of prophecy. We start with a figure that is an estimate. And it is based on many assumptions, one of which is interest rates, which are very volatile and fluctuate considerably.

Now, the estimate for the total is the composite of a 1.000 other estimates. The Congress recognizes this by providing some leewayin this year's bill it is $4 billion-in case those estimates are wrong. Professor BICKEL. There are the estimates of noncontrollables? Mr. COHN. Well, the Congress chose only to make that $4 billion allowance for some of the uncontrollables but not all of them. Public assistance grants, for example, is an uncontrollable not covered by the allowance. And the President has chosen not to try to withhold these grants without saying he has or does not have the power. Basically, these are formula payments to States, and whatever the caseload requires the States to ask for, we request the appropriation. Now, the Congress, in another action, gives the Treasury the power to pay those grants in the last quarter of the year without an appropriation, charging the next year's appropriation if necessary. So we can exceed one quarter's expenditure of that estimate without any current congressional action. And that is not in the $4 billion allowance, of which, incidentally, we have used about $32 billion already. And Congress need take no action in the last quarter for public assistance, but, according to the statute of this expenditure limit, still that outlay is covered by the total limit on spending.