much to apportion or to reserve. The first recommendation comes from the department head, from the secretary or the agency head of an independent agency. And it comes through us, but the actions are decentralized in that they come throughout the year as appropriations are enacted throughout the year. So, especially because appropriations are enacted 4 to 6 months after the start of the year there is not really any one central place where you can find out at the start of the year the whole picture of withholding the negative side of the picture. This budget document is the place where you can find out the positive side of the picture once a year, when it comes out.

But any time anyone asks, as Mr. Weinberger said, we do our best. to provide the information. We are not trying to hide anything; just the opposite.

Professor WINTER. I am not a permanent member of the staff of this subcommittee, but the chairman of the subcommittee did say yesterday that there was difficulty in getting information on impoundment.

Mr. EDMISTEN. I must say, Mr. Winter, that was prior to Mr. Weinberger's administration. We did have a very difficult time getting information. It came in bits and pieces.

I must say you did respond very effectively. Of course, I know you could not break this down on that short notice any more than you did. But there has been a drastic change in that regard.

Mr. WEINBERGER. We have nothing to hide, and we will be delighted to supply any information the subcommittee wants at any time and just as promptly as we can.

Mr. EDMISTEN. I think that will be a great help, Senator Gurney. just knowing that we can get information to the Congress.

I do not know why it would not be helpful also if the House and Senate appropriations committees were to be kept on regular notice of the impoundments undertaken by the OMB.

Senator GURNEY (presiding). Well, I must say that my own experience with the present administration is that they have given information when they are asked about it. I have not seen any attempt to conceal anywhere at any time, despite some comments to the contrary, and I am delighted to hear that the Office of Management and Budget responded so quickly to this subcommittee.

I congratulate you. This has been my experience, too, with the Nixon administration.

Mr. WEINBERGER. Thank you.

Professor WINTER. Are you saying it would be impossible to establish procedures by which your office would announce the authority under which funds are impounded?

Let's take an example from another administration.

Mr. WEINBERGER. I think in order to be safe about it, we would carry it out under good legal principles and with good legal advice. It would soon turn itself into a comparative stereotype by which each action was supported by all the implied and direct authority which we believe we have. I think that would be the advice most lawyers would give the Office of Management and Budget.

Mr. CоHN. More than lawyers. Mr. Weinberger will remember, I think, if I remind him now, that when we look at the debt limit and expenditure limit, we do that after we look at the other reasons that

might have been given for reserves. There are other general reasons, such as contingencies, where some funds are withheld because there are previous commitments made for loans. While those commitments are being honored, we call that a contingency, so we withhold the loan money until we see whether the earlier commitments will be met within the amount available. If they are, then the funds are obligated. If they are not, then they become available for others.

Well, we go through all these things first and then if there is a need for further reduction left over, we might call that a debt limit or expenditure limit contingency.

So quite aside from legal grounds, if we did not have the first group, we might have had to make that a debt limit contingency. So it is hard to say there is only one reason. There is a lot of residual thinking as you go through it.

Professor WINTER. But you can give regular notice, without being asked, of funds being impounded?

Mr. WEINBERGER. We have records, of course, as to what we have impounded and what has been released and that kind of thing.

Mr. CонN. The record-keeping operation has a little bit of a lag, because it is decentralized by each of our units that work with each agency. We did give Mr. Weinberger one list and then we caught up with some other items a week or so later and we had to revise the list. There are a number of changes, but the bulk of it you have. Mr. EDMISTEN. Could we have those additional figures? Mr. WEINBERGER. Changes up and down, releases, and so on. Mr. EDMISTEN. Yes.

Professor Miller has some questions.

Professor MILLER. Thank you.

Just a couple of comments, sir, and one or two questions.

I find your statement, if I may say so, a most extraordinary document. I take it that it is an example of strict construction of the Constitution that we are told is the policy of this administration. I find nothing, in accordance with what my colleague. Mr. Bickel, says, in the Constitution that would uphold your position, Mr. Weinberger. On the contrary, I do not think you have any constitutional grounds for it whatsoever; I do not think you have a Supreme Court case that says it. At most, you have some rather ambiguous statutes that might. I find it incredible, if I may so, that you would rely on the Employment Act of 1946. That is beyond belief.

I would also like to call your attention to one other thing, if I might, which I will call selective reading of documents. Somebody read this House Report 1797 of the 81st Congress and selected out a couple of sentences from page 9. If you read page 311 of that same document, you find this statement:

It is perfectly justifiable and proper for all possible economies to be effected and savings to be made. But there is no warrant or justification for the thwarting of a major policy of Congress by the impounding of funds. If this principle of thwarting of the will of Congress by the impounding of funds should be accepted as correct, then Congress would be totally incapable of carrying out its constitutional mandate and providing for the defense of the nation.

That is an interesting way, of course, of writing a brief. I think all lawyers do it one way or another. But certainly I think that one should be made a part of the record.

Mr. CонN. Before you go on, sir.

Professor MILLER. I would like to pose a question.

Mr. COHN. On that same point, did that document also say that the Director of the Bureau of the Budget should reserve hundreds of millions of dollars from the funds Congress has appropriated without telling him where?

Professor MILLER. I am unable to answer that question.

Mr. COHN. I think it did; so perhaps yours is a selective reading,

too.

Professor MILLER. I will plead guilty, Mr. Cohn. I say we are, as all lawyers are, guilty of selective reading. I just wanted to put it on record that we have a selective reading from Mr. Weinberger.

(Mr. Cohn subsequently supplied the following information:)

The provision in the 1951 General Appropriations Bill making a general reduction in appropriations was not covered in House Report 1797 on that bill but was added to the bill on the House floor and modified in conference. Therefore, the final Act did contain a general provision requiring a $550,000,000 reduction through the apportionment procedure.

In the history that was developed here before, is not the history almost entirely, up to, say, the last 10 or 15 years, in national security matters? Is there anything other than in World War II, or matters such as that, where presidents did impound, and is not the amount of impounding far greater in actual dollars today than it has ever been in the past?

Mr. WEINBERGER. Is that a question or comment?

Professor MILLER. That is two questions.

Mr. WEINBERGER. Well, the figures we have, as I mentioned, go back to 1959 and indicate that from the point of view of percentage of outlays, we are at about the general average that has prevailed in the period from June 1959 to date. There have been some years in which more actual dollars have been withheld, there are some years in which the percentages have risen higher. At the present time, our figures show that we have something under 6 percent of the budget. outlays impounded and that figure has gone up to 8.7 percent in 1960, and as far as dollars are concerned, it was $10.8 billion in 1967. So I think the answer to your question is "No." We are well within the general averages that have prevailed in the period 1959 to 1971. Professor MILLER. As far as absolute dollars-I mean how many dollars, for example, were impounded in 1959?

Mr. WEINBERGER. In 1959, we show $6.9 billion.

Professor MILLER. So we are about double that at the present time? Mr. WEINBERGER. We had only $92 billion in total outlays in 1959 also.

Professor MILLER. All right. If I may get a little less, should I say, pejorative and ask this. Senator Gurney asked, I think, a question, or you responded to a question, that you had several suggestions for changes in the appropriations process in Congress that would improve matters. I think the subcommittee, as I understand its role and function, would be most interested in these suggestions.

Mr. WEINBERGER. Well, they are very simple ones, and I hesitate to make them because it is quite presumptuous of anyone who has been here a short time to give any suggestion with respect to the appropriation process. In so doing, I have to draw on my State ex

perience in having served as director of finance of California for a couple of years.

While we certainly have a great deal of improvement that could be made in any kind of system of government, I think it would enormously improve the ability to budget as well as to manage Federal fiscal affairs if we could have some assurance that the budget appropriations would be made somewhat closer to the beginning of the fiscal year. It adds a substantial amount to the difficulties of budgeting when you go 8, 9, and 10 months past the end of a fiscal year without receiving a budget or a total budget.

Professor MILLER. May I interrupt you there, sir?

Mr. WEINBERGER. Yes.

Professor MILLER. Would there be any interest as far as your office or the Office of the President to suggest to Congress that they legislate that way; in other words, propose some sort of procedure? I have not seen anything, at least in the press

Mr. WEINBERGER. We have had a number of recommendations and suggestions and a great many people have indicated that this is perhaps somewhat presumptuous on the part of the Executive. But there are a great many suggestions fully developed and ready to be proposed.

One of them would be a suggestion that we try to have some overall look at the appropriation process rather than the piecemeal, bill-bybill approach that I spoke of a few moments ago. That makes it very difficult for Congress to have any idea at any given time as to what are the total outlays or what is the total impact on the economy of the budget. One thing that is difficult for one whose experience has been primarily at the State level is the realization of the total impact on the national economy of the Federal budget. It is so very large that it does have a major impact and, for that reason, it is all the more important, I think, that Congress have before it the total effect of its actions at any given time, rather than just going about it on a piecemeal, bill-by-bill basis.

I think that there would be great improvement if we tried again a unified budget bill in which all of the appropriations were combined. I think it would be quite helpful if Congress could address itself to those matters the appropriation bills at the beginning of the congressional session, and perhaps not take up other bills until action on the budget one way or another is completed.

There are a great many other suggestions that are mentioned on page 17 of the budget book. But there is a substantial hesitancy about putting them forward because of the desire not to appear presumptuous and intruding on what is essentially a legislative function. Professor MILLER. A comment and a final question. It is not presumptuous, however, to refuse to spend money that Congress has appropriated, I take it.

Mr. WEINBERGER. No; that is essential.

Professor MILLER. I see.

Now, the final question is this.

Senator GURNEY. Before the question is posed, I do want to back up Mr. Weinberger in what he said. The Administration has urged

Congress this past year, and again and again, to be more speedy in handling appropriation bills and, very frankly, we have not done a very good job, in my opinion. I think Mr. Weinberger is being very restrained in his comments, as the President also, in the last year, has tried to be restrained, too. I think it is the fault of Congress in not getting going faster with these appropriations bills and not the fault of the Administration.

Professor MILLER. Mr. Weinberger, I am still hazy about the criteria which you use and the OMB uses in selecting which laws of Congress you are going to execute and which funds you are going to impound. How do you choose to dump an aquarium and, say, build an SST?

Mr. WEINBERGER. As Mr. Cohn mentioned, the aquarium decision was made a few years ago before I got here, so I do not know the criteria that led to its selection. But I am frank to say that on the basis of the relative state of priorities, it does not seem to have been entirely an erroneous decision.

With respect to the SST, that is a budget decision that it is essential for the maintenance of the balance of payments and for the internal prosperity of the country that we maintain our leadership in this area and my understanding is that this is one of the bases of the President's decision some years ago to go ahead with the funding. It also was a decision that I think was in the making many years ago. But, of course, what your question really requires is a detailed justification of each of the President's selections and omissions from his budget, and that is a far longer chore than I suppose any of us have time for today.

Professor MILLER. You must have some sort of criteria; otherwise, it is just an ad hoc decision.

Mr. WEINBERGER. I have attempted to indicate to you the bases for the two particular points you have mentioned.

Professor MILLER. You say you have several laws to execute-the Employment Act, which I do not think you said, but you have several others the debt ceiling and so on.

Mr. WEINBERGER. It is the feeling of this Administration that the control of inflation is one of the major requirements and necessities of the age and for that reason, the Employment Act, which perhaps you do not attach the same importance to that we do, does seem to be a very sound basis for some of the fiscal decisions that the President has made.

Professor MILLER. Mr. Weinberger, just a moment, sir. The Emplyoment Act does not state any specific policies. It merely sets out a general statement of national policies; it sets up the Council of Economic Advisers, the Joint Economic Committee, and so on, and provides for annual report to the Joint Economic Committee.

Mr. WEINBERGER. But in the selective reading we give to the statute, Mr. Miller, it does require that we give attention to the maintenance of the purchasing power of the dollar, and that is something we have to be concerned with.

Professor MILLER. Well, how do you make that determination, for example, to build an aquarium or some other project? That is what I am trying to get into.