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it is considered very much more desirable if we can be not much more than 6 months behind the date the budget is supposed to take effect with our final submissions. I think it is of more assistance to Congress in connection with the economic estimates as well as the needs.

We used to, in some States, of course, budget 2 years ahead, and that was pretty unsatisfactory, to try to guess in January 1960 what your needs were going to be in July of 1962.

So I think the closer we can stay in the submission of the budget to the effective date, the better it would be for all.

Mr. Coun. Senator Gurney, I would like to add one other point, because I feel rather sensitive about this and I do not want our comments to be taken as a reflection on the appropriations committees or the staff of those committees and the work that they do.

The rules of the Congress itself are in part to blame. There has been an ever-increasing number of authorizations which the Congress makes annually and the rules require that the funds can't be appropirated until the project or activity is authorized. Congress burdens itself each year with more and more annual authorizations for which the appropriations committees then sit and wait. As long as this keeps growing and continues to be a problem, appropriations are going to be delayed.

Senator GURNEY. Well, that is a good comment, although in recent years, it is also true that Congress is moving more in the direction of authorizations on 3 and sometimes 5-year basis. So we are, I think, changing around some. But your comment is well taken.

Mr. Edmisten?

Mr. EDMISTEN. Senator, I think the chairman might have been tied up in Women's Rights Amendment testimony in the House. We can limit it, if you would desire, to one more question of each of the gentlemen.

Senator GURNEY. I think it would be well. I was trying to accommodate.

Professor Stolz. I have just one question to go back to what we were talking about.

There are, as I understand it, a considerable number of funds which are, in fact, noncontrollable in the sense of not being impoundable. You mentioned a few—the increase on the debt, the social security. You said that this administration had decided not to attempt any impoundment of welfare apportionments among the States. And at least the assistant attorney general advised that the impacted area school funds were not impoundable. I would assume that you think the Commodity Credit Corp. expenditures are not impoundable.

If we are thinking of impoundment as a mechanism for controlling inflation, which I understand you to have suggested, it would seem to me that the discretion of the President ought to be broadened to include at least some of these other types of expenditures. In other words, it seems to me that the Congress' action in making some of these expenditures mandatory has interfered, not with what I would take to be an implied power of the President, but unwisely with what

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everybody expects the President to do, which is to respond to fiscal needs of the economy. Would you care to comment on it?

Mr. WEINBERGER. Well, the problem, Professor Stolz, is that with respect to such matters as interest on the national debt, there are different considerations involved. Anything involving, for example, repudiation of the obligation of the United States would have enormous and catastrophic effect, so the question does not even arise in a matter of that kind.

This administration has felt that it should look primarily to the so-called controllable areas of the budget for whatever withholdings it has to make in order to adhere to outlay ceilings, debt limitations, and things of that kind. And the amounts that are required have been consistent with the amounts that are available within those controllable sections of the budget. There is not any feeling, I think, that this power should be used so that the budget itself will be remade every 6 months or anything of that kind.

There is, however, a basic overriding residual necessity that the President have the flexibility to enable him to move some appropriations in or out of the spending category from time to time. The amounts involved have been such that it can be done within the controllable sections of the budget. And at this time, without denying the authority of the President to use other sections of the budget, I would not feel that he has thus far been improperly constrained in his ability to carry out the responsibilities he has in this field.

Professor STOLZ. We were talking a moment ago about policy choices as between various programs, the SST, perhaps, may be more important than fish. I would think, just from my own judgment, not being a congressman and not having to worry about it, one of the places impoundment would belong would be the impacted school funds.

Mr. WEINBERGER. The President has many times made clear, I think, to the Congress that he feels this is a quite inequitable way to secure better education.

Professor Stolz. And I would assume if you were concerned about managing economy and fiscal controls, that would be a place to slow down spending.

Mr. WEINBERGER. I think that area is available to the President, but thus far, he has not had to make substantial use of it.

Professor Stolz. You just told us that you do not have the authority, or at least do not have the authority under the act as you construe it.

Mr. WEINBERGER. These are funds that have a mandatory spending clause attached to them. The point here that I tried to make is that, in order to determine the President's actual powers under these circumstances, something more than an informal advisory opinion such as you and I might exchange, I think, would be required. But these are in a different category than other expenditures to which the mandatory spending clause has not been attached.

But the point I was making was that I think that there would eventually have to be some determination one way or another as to whether or not the mandatory spending clause is effective. There has been no disposition thus far on the part of the Administration to challenge that or to withhold funds that are now subject to the mandatory spending clause.

Professor Stolz. One other question if I may, Senator.

This is a little bit wide and I understand that you cannot or would not attempt to speak for the Administration. But on the basis of your experience in California, would you regard or do you think the item veto, which in California includes the power to reduce an appropriation, would be a desirable revision? Mr. WEINBERGER. Yes. I think it is a part of the necessary arsenal.

Professor BICKEL. That question keeps recurring. It would not meet this problem, because it would simply be exercised at a timethe item veto is in effect there when you make up the budget. It would not meet your problem a year later when you had to control inflation.

Mr. WEINBERGER. It would not be advanced to meet that particular problem. It would be advanced as a separate weapon for the Executive and one which, in the final analysis, I would think the Congress would favor, because there is, as was mentioned in the opening of the hearings and Senator Mathias' statement, an opportunity for the Congress to exercise override power on that.

Professor JOHNSON. It is getting late, I realize, so I have a very brief question, a hypothetical question.

What if a President impounded funds that had been received through a mandated appropriations measure? What recourse would Congress have against that?

Mr. WEINBERGER. Oh, I suppose some form of lawsuit in which there would be an attempt made to draw the courts in to determine the extent of the executive power. We are all talking hypothetically. So that is just my guess.

Mr. EDMISTEN. I would like to introduce Professor Cooper. He is the chairman of the Department of Political Science at Rice University. He is going to make his presentation cither this afternoon or in the morning. He has a question now.

Professor COOPER. Thank you.

I think you have to be careful not to concede on policy grounds something that does not belong to the Executive on constitutional grounds. It might be very nice for the Executive to have the impoundment power to control inflation, it might be very convenient, might be very effective. But the basic question is, does it have legal grounds to use this device?

The Employment Act tells you to achieve certain objectives but it does not tell you to achieve them through us of impoundment. So the basic question is what is the justification for impoundment the way the Executive has been using it recently.

In these terms, there are many questions I would like to ask, but I will zero in on one and that is this notion of inherent executive power.

If you read the history or do some work in the history, you will discover that this whole process of reserving funds for purposes of other than to provide for deficiencies started in 1921 with General Dawes, who was the first Director of the Budget Bureau. I think it would be enlightening, though not an entirely happy experience, if the present budget people would read his book called “The First Year of the Budget.” His interpretation of what the impoundment power involved is really quite clear. He did say, and he is the first one to have used the notion, that appropriations are not mandatory. All he meant by that was that if you could implement a program without spending the full appropriation, you did not have to spend all the money-period. Nothing more than that.

From Dawes' time until 1950, the Budget Bureau and the President really adopted a very restrained view as to what their authority was to impound. In fact, the Budget Bureau in 1950 was very anxious to get statutory authority, because it was doubtful of its authority to impound even for the reasons that Dawes had cited. There had never been any statutory authority for those grounds, nor any for the extension that other Budget Bureau people felt was clearly legitimate, which was to impound in cases where conditions had changed so as to make a particular appropriation wasteful.

Now it is true the language is framed a little broadly in section 1211 of the General Appropriations Act of 1951. But if you read the legislative history and read the report that the Budget Bureau itself submitted, it is clear that the Budget Bureau did not think it was receiving and did not claim to have anything more than the power to save money where the purposes of a program could be effected for less cost, or where conditions in a specific instance had changed so that it would be wasteful to implement a particular project or program. It did not understand change of conditions generally so that it included any interpretation of change of conditions and justified any impoundment. Rather it understood it to mean change of condition with reference to a particular program to mean situations where something had happened in terms of a program, not inflation or anything general, but something specific in terms of a program that would make it wasteful to implement that program.

We come to the present day and we do not have this restrained attitude any more. In fact, we have a claim that the Executive has inherent power to impound. My question is rather a sharp one, but on the basis of the history, I think it is an appropriate one. It is simply, what has changed since the first 30 years? Why can the Budget Bureau now claim inherent power and a general inherent power to impound, after 170 years in which this has not been very clear at all? On what basis, then, can you assert that power?

Mr. WEINBERGER. Professor, I think you are overlooking the fact that an equally important part of the history is the administrative interpretation and administrative action under the statutes. The ad. ministrative history and administrative action under the statutes fully supports the views that we have expressed this morning.

Professor COOPER. If you want to tell me that practice is your primary justification, I think you are right on that score. I think the best case the Budget Bureau has for the current withholding is precedent, Congress having allowed you to get away with it over the last 10, 12, or 15 years.

Mr. WEINBERGER. I think there is much more to it than that, and I think the additional part is that it is simply impossible to operate the executive branch or to carry on the fiscal affairs of the United States in a way that is really required by the circumstances without this kind of discretionary authority.

Professor COOPER. I would just suggest that there should be some better balance made between the Executive's needs for flexibility and the Congress' right to protect its own prerogatives. The extent to which the Budget Bureau has pushed impoundment is immense. Thus, though I would agree that the Budget Bureau needs more flexibility than General Dawes perhaps thought they had, it is still true that the kind of flexibility and discretion that you have now, really does not adequately protect Congress' rights. So there is a great need to explore alternatives for readjusting the balance.

Senator GURNEY. Mr. Weinberger, again, the subcommittee appreciates your prompt furnishing of the information. I would like this expanded, though, to indicate the specific projects. I do not see my friendly fish in here and I think it really might serve a useful purpose for the committee if you did break down these amounts and give us the specific amounts that have been impounded for various projects. Would you furnish that information for the subcommittee?

Mr. WEINBERGER. All right, sir, we will try to break that down in more detail than was originally furnished

Senator GURNEY. Also, I think it would be helpful to the subcommittee if you would include the appropriation language in each of the specific instances where impoundment funds are involved.

Mr. WEINBERGER. The appropriation language?
Senator GURNEY. Yes.
Mr. WEINBERGER. All right, sir.

Mr. Corn. I am not so sure that is readily doable. Some of these funds were appropriated in prior years, some of them are a combination of several years. In highways, it is a combination resulting perhaps from 15 years of separate actions. That will take quite a long time to do.

Senator GURNEY. I see your point. At least let us have the breakdown and if you could give us some indication of the time frame, possibly we can have our own staff do this.

Mr. WEINBERGER. We can, I think, supply somewhat greater detail than in the list furnished last week or a couple of weeks ago, and we will certainly try to put that together. You would not want us, I am sure, to get into any kind of major effort paralleling the budget or anything of that kind.

Senator GURNEY. No. Mr. WEINBERGER. But we can certainly go into somewhat greater detail than was contained on the initial first run that we sent up.

(The following was subsequently furnished for the record :)

(The following tabulation lists amounts withheld from obligation in February 1971. On the left margin of the listing 1972 Budget Appendix pages are identified. The page numbers represent the first page of the Appendix on which appears information concerning the budget account under which amounts are withheld from obligation.)

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