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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 made there 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 resnonsibility 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 vou 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 juderments, and thev 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. Corn. 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. Coun. 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 $31/2 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.
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For some of our other estimates covering programs that are controllable, Congress does not vote the expenditure, but votes the appropriation. Under some circumstances, appropriations spend more quickly than under other circumstances, or more slowly. We are just trying to make a forecast and estimate.
Now, if this is just an estimate, as it had been up to 4 years ago, perhaps we could not rely on this ceiling law as an authority. But when Congress makes it a limit, then we must be sure we do not go over.
Professor BICKEL. So that this is a place where Congress' desire to control the making of expenditures by the Executive and its desire to have control over the total expenditures are really in conflict ? Mr. Cohn. They are inconsistent.
Professor BICKEL. If Congress did not give you a ceiling, you would have less excuse for impounding?
Mr. Cohn. That is right. But let me tell you something else. First the total of the basic figures in the budget already takes account of whatever impoundments, if you will, or reserves the President has established. The debt limit considerations start with that total budget figure, too. Thus, the considerations of the Ways and Means and Senate Finance Committees, start with a budget total which already reflects certain deferrals of expenditures that the President might have directed because of his charge to faithfully execute all the laws.
Then the Congress in its wisdom decided to give us $5 billion less of a debt limit than we asked for. Well, what are we supposed to do? We have to try to cbey that law, too. So even if you did not have the expenditure limit, you have the debt limit. And we are trying to do our best for all these laws.
Professor BICKEL. There is a dilemma for Congress and a choice that it has to make between how strong is its desire to have the debt limit and the ceiling as limits on how much the Executive will spend and how strongly it desires to have the Executive spend all or most of what it appropriates.
Mr. WEINBERGER. Let me point out, Mr. Bickel, that that ceiling is an outlay ceiling and the point Mr. Cohn is making is that Congress does not have to nor do they estimate outlays. We have to estimate the outlays. And if our estimates—as he mentioned, for example, welfare payments are going to run over—are wrong, the outlay ceiling does not expand automatically at all. It remains firm. It is a lid on expenditures; it is not a lid on congressional appropriation.
Professor BICKEL. Well, the estimate of the appropriation can control or come near to controlling the outlay in a controllable program, but what it can't control-it does not even relate to, I suppose—is the noncontrollables ? Mr. WEINBERGER. That is right.
Professor BICKEL. The outlay or the 50 percent of the budget that goes out by itself?
Mr. WEINBERGER. Right. There is another problem, too. That is that we do not get the action of Congress on appropriations itself until very late in the year. As a matter of fact, we are now 14 months away from the submission of the 1971 budget, and we do not yet have one of the appropriation bills.
Professor BICKEL. I will try to do better on that one. Mr. WEINBERGER. Nevertheless, these are factors that a lot of people, I think, do not fully appreciate and can't until they have the responsibility for the management of these sums.
Professor BICKEL. That clarifies the problem for me anyway.
May I just ask one more point of law which is by way of exploring how lawful the foundation in existing law is of the solution that is now being used and that has since 1940 been used by the Executive.
If my understanding of the constitutional position, which is not necessarily entirely yours, is correct that the essential residual power here is that of Congress, then I, at least, as a constitutional lawyer, next led myself into the principal statement of the relationship between Congress and the President where powers are inherent, and that is the Steel Seizure case, which tells me that in an area where the residual power is that of Congress, there may yet be power to act independently in the President, but only so long as Congress does not exercise its residual power and when it does, it generally does so or is held to have done so with a negative pregnant. It is held to have done so by attaching to what it says affirmatively a negative statement which says: “And do not do anything else or do it any other way.”
Mr. WEINBERGER. That assumes that the essential residual power does reside in the Congress, and that is a matter that I think the courts ultimately have to resolve.
Professor BICKEL. It is going to be difficult. It is one of those situations that has to be straightened out more in exchanging advisory opinions like this than in the courts, because constructing a case like this is going to be a very difficult matter. It can only be a mandatory appropriation case which gives standing to sue.
Mr. WEINBERGER. There can even be an argument made that the courts themselves have no power to interfere with the President or with the Executive power.
Professor BICKEL. That is correct.
Now, following my hypothesis, the thing that puzzles me and I do not expect you to clear up my puzzlement, but I will just put it to you. I read the Anti-deficiency Act with its legislative history so far as I have it available as amended in 1951 as being the assumption by Congress, of its residual power in this area. I read it as mandatory. I read it as applying to appropriations and authorizations and obligatory authorizations. And I read it as telling the Executive in what circumstances he can establish reserves and withhold spending which is authorized by Congress. It is pretty broad. It tells him he can do it to the extent even that other developments subsequent to the date on which an appropriation is made change the situation so far as he is concerned, which is a rather broad, open-end provision.
But it does seem to me, or at least my professional puzzlement as a lawyer is why is this section 3679, 31 U.S.C., not the decisive answer? Why does anybody go at this problem with anything before him but this document ? Has not Congress already acted? Is not the function of this subcommittee now to simply suggest how, in the light of the modern problem, this statute might be reworded, or amended, or supplemented! But is that not the position?
Mr. WEINBERGER. Well, Professor Bickel, the Act says: