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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:

Except as otherwise provided, all appropriations or funds available for obligation in a definite period of time shall be so apportioned as to prevent obligation or expenditure thereof in a manner which would indicate a necessity for deficiency or supplemental appropriations for such period.

Then it says:

In apportioning any appropriation, reserves may be established to provide for contingencies or to effect savings whenever savings are made possible by or through changes in requirements, greater efficiency of operation or other developments

And so on.

Professor BICKEL. Right.

Mr. WEINBERGER. I think it is broad, as you say, but I do not think it is so broad as to prevent the President from exercising the power that, as we read it, Congress undoubtedly intended him to have.

Professor BICKEL. I think if you read that with its legislative history, you will find that a great deal of what has been going on since this effectively started. I think, under F. D. R. is justified by it, but that some, like the specific one-shot policy disagreement on 70 more aircraft, or the aquarium, perhaps, are not. And that very conceivably, just general Keynesian economics, which then involves you in a judgment of priorities as to which policies are more important than others, is not.

Mr. WEINBERGER. Of course, you understand that we do not rest entirely on the Anti-deficiency Act. There are several legs thatProfessor BICKEL. That would be your position.

Mr. WEINBERGER. Yes.

Professor BICKEL. But as I understand the total constitutional position, I do not see how you can rest on anything but the Antideficiency Act.

Mr. WEINBERGER. We do not share that view.

Senator GURNEY. Mr. Weinberger, one thing I am curious about. Do we have anywhere in the Government, and especially in your Department, a list of all of the funds and programs being impounded?

Mr. WEINBERGER. Yes; we have submitted a list to the subcommittee and there are changes made in it, things being released and items being withheld, all the time. But the subcommittee was submitted a list, I believe, 2 weeks ago in response to a request of the chairman. Senator GURNEY. I was not here yesterday, so I am not entirely sure of what came in and what did not.

Mr. WEINBERGER. We will be glad to send you another copy, Sena

tor.

Senator GURNEY. I would be glad to get one.

The chairman's statement here was that it was very difficult to get this information.

Mr. WEINBERGER. No, sir; we sent it up the next day after he requested it, and he made a press release of it. It has been in the

newspaper.

Senator GURNEY. This list, which I have now had presented to me by a staff member, is a complete list of all of the funds that are now impounded?

Mr. WEINBERGER. As of the time it was submitted. There have been changes since. And there are definitional problems on some of these things; for example, let me take mass transit. Congress has

said we should spend $3.1 billion in 5 years on mass transit and there is contract authority that can be made available for that purpose. Now, by some definitions, if we allocate $600 million of that the first year, some people would say, well, $2.5 billion is now being withheld. We would not classify that as being withheld. So there are definitional problems that will change the totals depending on who is setting the boundary lines. But that list was up to date as of the time it was submitted, and I believe it has a February date on it. Senator GURNEY. Let me ask this, too, and if this was inquired into yesterday, tell me, because I do not know.

Mr. WEINBERGER. I was not here yesterday, sir.

Senator GURNEY. Oh, well, would you state the exact process of impounding funds? Suppose the President wants to withhold some highway funds. What does he do? Call up the Department of Transportation and say, I want X number of funds withheld? How is this done?

Mr. WEINBERGER. Generally, it is on a more affirmative basis than that. We would reach conclusion as to the amount that would be released, and the Division of Highways of the Department of Transportation would be notified, and the releases would be made up to that amount.

Senator GURNEY. Are you saying that normally the President confers with your Department?

Mr. WEINBERGER. We make recommendations on these matters. The Department of Transportation would make recommendations. There would be general discussion by the President with his staff. It would differ in each situation. But in the final analysis, it would be the President's decision.

Senator GURNEY. But it would come through your Department also?

Mr. WEINBERGER. We would make recommendations, and the implementation of it; for example the notification of the Department as to the amount to be released, and so on, would come from our office; yes, sir.

Senator GURNEY. Thank you.

Mr. EDMISTEN. Professor Winter?

Professor WINTER. Mr. Weinberger, a brief comment on the independent or alleged independent constitutional power of the President to decline to spend when he is in disagreement with the congressional purpose for the appropriation. I think I would like to quote Mr. William Rehnquist, presently an assistant attorney general, who has said in an opinion:

It may be argued that the spending of money is inherently an executive function, but the execution of any law is, by definition an executive function. It seems an anomalous proposition that because the Executive Branch is bound to execute the laws, it is free to decline to execute them.

That is the end of the quote. I just wanted to read that. It seems to me to be on very shakey ground to take the position that the President can decline to spend solely for the reason that he disagrees with the congressional purpose, certainly in the face of a direction to spend. But I take it you now do not take that position?

Mr. WEINBERGER. I do not know why you say I now do not take it.

I do not think that point was ever in issue. But the quotation you have read that it would be anomalous for the President to execute the laws, or whatever was the precise language, has to be read in the context of the number of different congressional directions, laws, and statutes that the President has to enforce. As we have mentioned earlier this morning, he has a great many problems in connection. with reconciling total appropriations or total outlays that could well exceed the amount that Congress said can be expended in a given fiscal year.

Professor WINTER. Yes. As a matter of fact, that leads me to my second question.

My other question is when funds are impounded or the Presiednt is not spending the funds, why is it that there is not some kind of public order or public reason given, some kind of declaration by the President or by your office, as to the basis for the authority to decline to spend, whether it be the fact that the appropriation was not mandatory, considerations relating to the Employment Act of 1946, the Anti-deficiency statute, the powers of the Commander in Chief expenditure limits, or ceiling on national debt? One of the things these hearings has brought out is the enormous confusion as to just what the executive branch is doing.

Is there any objection to the President saying precisely, giving a reason when he declines to spend, even when he is just deferring spending?

Mr. WEINBERGER. The way you phrase it, it sounds as if there has been some refusal to give this sort of explanation. I think that declaration is negated by the fact of our response to the request this subcommittee has made. When it has requested information, it has been forthcoming the next day. I do not think there is any refusal to give information. I do not know that every single action by the President in impounding billions of dollars over these months should be supported by a press release, but there has been no attempt to hide the activity. It is extremely well known and is frequently mentioned on the floor of the Congress and in the subcommittee. Mr. Cohn had a point he wanted to add.

Mr. Conn. I would like to add a point, Professor Winter. I think you will find very few parts of Government that are as illuminated as well as the appropriation and budget actions of both the Congress and the Executive. Every year-this is just part of what we make public (indicating).

Now, of course, we publish it affirmatively. We indicate what the congressional action has been and we indicate how much we are estimating will be obligated and used of that action. At the same time that we are making our recommendations for the next year, we also try to show what Congress did the past year. And believe me, it is very difficult, when the Congress does not leave town until January 2 and then they want to start on this new budget as soon as they get back on January 25, or so, and yet we usually have it ready for the Congress.

Now, in addition to that, the actions taken to apportion must be taken within 30 days after Congress acts on the appropriation and it is those actions that usually reflect the President's decisions on how

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