was reduced from time to time during the fiscal year, and funds were made available for construction of highways on a scheduled basis within the established obligation limit.

(b) On December 8, 1966, there was reserved the sum of $41,293 thousand of the appropriation, "Construction, General, Corps of Engineers (Civil)." The cutback was not identified with specific projects, but was directed by the President as a part of a general effort to reduce Government spending in the light of prevailing financial and economic conditions. All of this was released later in the fiscal year-$965 thousand on February 14, 1967, to reimburse the Yuba County Water Agency for the Federal share of costs incurred during the latter part of fiscal year 1966 on the New Bullards Bar project (California), and $40,328 thousand on April 6, 1967, to permit the award of various contracts as rescheduled under the fiscal year 1967 deferral program.

B-2-Human resources area

On September 30, 1966 there was reserved the sum $3.6 million of the appropriation and balances available to the Department of Housing and Urban Development for neighborhood facility grants. This action was consistent with the President's announcement in a message to Congress on September 8, 1966, reiterated in his Budget Message of January 24, 1967, that lower-priority Federal programs were being reduced, as a contribution to a moderation of inflationary pressures existing in the latter part of the calendar year 1966. The Director of the Bureau of the Budget explained the reduction efforts generally in testimony before the House Ways and Means Committee in September 1966. The entire reserve was released for use on June 16, 1967, to fund the pilot neighborhood service center program.

B-3-Public works area

In the fiscal year 1957, the sum of $1.1 billion was apportioned in the appropriation account, "Procurement and Production, Army." This was $382 million less than the amount requested by the Department of Defense. Notations in the files of the Bureau of the Budget identify the reserves in three categories"aircraft," "guided missiles," and "other"-but no specific projects below these category levels are identified. The background is not clearly known at this time, but it appears that this action may have been a step in meeting overall obligation and expenditure targets established by the President. During the fiscal year, amounts held in reserve were released when requested by the Department of Defense. The funds apportioned and reapportioned were sufficient to cover all the obligations anticipated or incurred for the fiscal year for the approved programs under this appropriation account.

C. Reserves established under the Anti-Deficiency Act, which affected specific programs or projects

C-1-Public works area

On October 26, 1962 there was reserved the sum of $100 thousand of the appropriation, "Construction, General, Corps of Engineers (Civil)"-a sum which had been appropriated for use on the Cape Fear (New Hope), North Carolina, project, a project which had not been authorized for construction by the Congress. On January 9, 1964 this sum was apportioned, as the project had by then been authorized for construction by the Congress.

C-2-Human resources area

In the fiscal year 1957, acting under the authority of the Anti-Deficiency Act, a reserve of $29,800,000 was established against the appropriation of $48,432,000 to the National Cancer Institute, pending review of program plans. Later in the year, this reserve was successively reduced to $27,622,100 (on September 28, 1956), reduced to $4,288,000 (on October 17, 1956), increased to $4,588,000 (on April 11, 1957), increased to $6,623,000 (on May 15, 1957), and finally reduced to $5,573,000 (on June 14, 1957). This latter amount was not obligated and became part of the unobligated balance which lapsed on June 30, 1957.

C-3-Military procurement area

In the fiscal year 1958 there was reserved the sum of $925.4 million from the several procurement appropriations of the Department of Defense, affecting such items as: LaCrosse I, Redstone and engineer equipment for Redstone, railways cars and locomotives, the Grumman flight test facility on Long Island, the J-83/85 engine, and Dynasoar. The circumstances surrounding this action

were discussed in hearings on May 20 and June 17, 1959, before the Preparedness Investigating Subcommittee of the Senate Committee on Armed Services, and were printed under the title "Major Defense Matters." Generally, the reason for placing the funds in reserve was because planning (program or financial) for the specific line items was judged to be inadequate as of the time of the reserve action. Maurice Stans, then Director of the Bureau of the Budget, testified (page 272 of the hearings cited above) that requests were made by the Department of Defense for release of the funds, and substantially all of the money was released by the Bureau of the Budget, as requested.

D. Reserves established under the Anti-deficiency Act, which affected a group of related programs

D-1-Public Works area

In the fiscal year 1954, there was reserved the sum of $43,629,359 in the appropriation, "Construction, General, Corps of Engineers (Civil)". The purpose was to achieve reductions in program obligations and expenditures in the light of circumstacnes then prevailing. The money was apportioned on August 20, 1954, to allow its use for construction in the fiscal year 1955.

D-2-Human resources area

[No examples found.]

D-3-Military procurement area

[No examples found.]

Senator ERVIN. Participating today in our discussion of the questions involving the President's power to impound appropriated funds will be Stewart L. Udall, a former Secretary of the Interior; Joseph L. Alioto, mayor of San Francisco; Representative Charles E. Bennett of Florida; F. C. Turner, Administrator of the Federal Highway Administration; and William J. Driver, a former Administrator of the Veterans' Administration.

On Wednesday, we expect to have with us Caspar Weinberger, Deputy Director of the Office of Management and Budget: Prof. Harvey Mansfield of Columbia University; Raymond C. Coulter, Deputy Solicitor of the Interior Department; and Dr. Warren J. Wisby, Director of the National Fisheries and Aquarium.

On Thursday, panelists will include Prof. Joseph Cooper of Rice University; Prof. Brownlee Sands Corrin of Goucher College; William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Department of Justice; and Robert Keller, Assistant Comptroller General of the United States.

We are pleased to have with us for all 3 days Prof. Loch K. Johnson of the University of North Carolina at Chapel Hill. Professor Johnson was instrumental in assisting Senator Church assemble materials and research for his article on impoundments which was published last year in the "Stanford Law Review," I will insert Senator Church's article in the record at a later time.

We are also pleased to have with us Prof. Preble Stolz of the University of California School of Law at Berkeley, now visiting professor of law at Yale University, who will take part in these discussion throughout the 3 days. Professor Stolz has aided this subcommittee in its past studies of the Federal judiciary.

The Library of Congress has been kind enough to lend us the services of Louis Fisher, an analyst on the staff of the Congressional Research Service, formerly assistant professor, Queens College, who has written three very helpful articles on this subject. I shall insert two of these in the record at a later period. We are delighted to have Mr. Fisher with us during the course of these hearings as a special consultant.

I would also like to acknowledge at this time the most valuable contribution to this inquiry which has been made by Mary Louise Ramsey, a legislative attorney in the American Law Division of the Congressional Research Service, Library of Congress. Three years ago, Miss Ramsey did exhaustive research at the subcommittee's request and prepared for us a memorandum on impoundment.

Recently she updated this earlier work and I will insert these two outstanding memoranda in the record at a later time.

I regret that Prof. Philip B. Kurland of the University of Chicago Law School is unable to be with us here today, but we have Profs. Alexander M. Bickel and Ralph K. Winter, Jr., of Yale Law School, and Arthur S. Miller of the George Washington University National Law Center.

Mr. EDMISTEN. Mr. Chairman, at this time, I notice that we have our panel participants in the audience, Mayor Alioto and Mr. Stewart Udall.

If you two gentlemen will come up and take seats here on the panel, we shall begin.

Mr. Udall, if you would give your statement first, we will proceed.

STATEMENT OF HON. STEWART L. UDALL, CHAIRMAN OF THE BOARD, THE OVERVIEW GROUP, AND FORMERLY SECRETARY OF THE INTERIOR

Mr. UDALL. Mr. Chairman, I have a brief prepared statement. I will read it quickly and we can get on with our discussion.

Mr. Chairman, I appreciate the opportunity to participate in this panel discussion. I served for 6 years in the Congress and in the cabinets of two Presidents. Having wrestled with the problem of the expenditure and impoundment of funds both as a legislator and member of the executive department, my views have been tempered by insights acquired while sitting on opposite sides of the table, I might say.

This is a propitious time to raise the impoundment issue. On the one hand, there are signs that Congress may be ready for internal reforms that could strengthen its capacity to be a coequal branch of government. On the other hand, the creation of OMB in the Executive Office last year has given presidents a powerful new tool for budgetary control. The economic strains of the Indochina war, which seems to be interminable, have forced the last two Presidents to use the impoundment and deferral of appropriations as a tool to combat inflation and influence economic trends.

Shifts in the legislative-executive power balance are always subtle, and always hard to assess. Presidents in these troubled times are forced by events to aggrandize their powers, to expand their capacity to serve the national interest as they see it. The modern Presidents have sought to expand their authority to deal with crises, and I am convinced Congress cannot protect its full constitutional powers unless it is as adaptive and responsive to change as the Executive. I do not believe these discussions will be fruitful if we concentrate on abstract constitutional questions. The need for accommoda

tion between these prime organs of government is too great for a dispute over constitutional prerogatives to be a useful exercise at this time in our history.

In essence, this is a political problem. And wise men under our form of government should seek to define a comity which will blunt the edges of controversy and avoid arguments over inflexible constitutional concepts. Mr. Justice Holmes once referred to the importance of "leaving room for the play of the joints." This apt phrase suggests the common sense approach needed, I believe, if accommodation is to be achieved in this vital area of government. To my way of thinking, the Congress itself is largely to blame for the erosion of its powers. Presidents, in preparing their budgets and expending appropriated funds, are increasingly forced to make judgments about national priorities and long-term goals. The creation of OMB in 1970 was, for example, a step toward tighter Executive control of expenditures. This new office gives Presidents a framework to systematically evaluate alternatives and overall priorities.

Yet, in a time of rapid change, the appropriations committees of the Congress still use essentially the same procedures and staff functions to evaluate executive budgets as were used 3 of 4 decades ago. These committees ought to be served, in my view, by a computersupported staff of economists and analysts as competent as those which serve the Executive.

They should also make studies and hold hearings that would enable them to develop a set of fiscal priorities for the immediate future.

If Congress has partially lost its power of the purse, it has been by default. Its subcommittee system fragments responsibility to the point that there is rarely a congressional consensus on national needs. Nearly all decisions on annual budgets are made in the airtight compartments of subcommittees whose thinking more often than not is geared to parochial considerations or outdated concepts of the national interest.

To underscore this point, I need only point to the 2 to 1 margin by which the appropriations committees of both houses approved money this month for the SST.

I think it will be clear in the Senate tomorrow and was in the House last week that the appropriations committees are out of step with the Congress as well as the country.

The Congress has the power to put the Executive in a whipsaw and enforce its will. However, a Congress-or an appropriations committee-that has no strong, clear-cut convictions about national priorities obviously has no will to enforce.

As one who would like to see the Congress play a larger role in determining our national needs, I am concerned about the obvious shrinkage in congressional power which is the occasion for these hearings. However, I fear this process will continue until internal reforms renew and refreshen Congress' capacity to think for the country as a whole and deal directly with the larger issues that preoccupy modern presidents.

Thank you.

Senator ERVIN. Thank you, Mr. Secretary.
Mayor, we will recognize you at this time.

STATEMENT OF HON. JOSEPH ALIOTO, MAYOR OF THE CITY OF SAN FRANCISCO, CALIF.

Mayor ALIOTO. Thank you very much, Senator.

Let me state first of all that I have filed with the subcommittee a written statement on this point. With your permission, however, Senator, I would like to make a concise statement summarizing that written statement; then we can get on to the next portion.

Senator ERVIN. That will be entirely satisfactory. Let the record show, however, that the full written statement will be printed in the record at the conclusion of your remarks.

Mayor ALIOTO. I think in a situation like this, Senator, a case history is important. Last year, 300 mayors and community leaders came to the Congress and we started with Senator Pastore. We pointed out to him that the administration, which wanted only $1 billion for urban renewal, was going to hamstring the cities in very important work that they were doing in the ghetto areas.

We told the Congress at the time, by bringing community leaders themselves to state directly to the Congress what was going on, that unless we had some additional funds we were going to have trouble completing our urban renewal programs. We told them that urban renewal was no longer a dirty word, that it was no longer regarded as some kind of device to take land away from the poor and give it to rich speculators, that it was no longer regarded as some kind of device to remove Negroes from an area of a city that did not want them, that it had gained acceptance now, that those earlier criticisms had been remedied, and that now we desperately needed funds for urban renewal to complete the work and to fulfill certain hopes that the Federal Government itself had generated.

So we had this elaborate conference. Mayor Lindsay. Mayor Daley, and I and a few other leaders brought this to the Congress. Congress agreed with us. They gave us $350 million more for urban renewal. That $350 million, along with other fund requests went to the President. The President vetoed that.

We brought the same mayors and leaders back to fight that veto so far as it related to urban renewal. After considerable conferences and a lot of expenditure by all of us, the Congress decided it would add $200 million for urban renewal. This time the President signed it.

Then the OMB simply said, "We are not going to spend the money."

I submit to you that this raises a serious constitutional question. I think the constitutional question, if it can be raised with respect to urban renewal, can be raised, for example, with respect to the courts. But let me deal first with urban renewal.

Under the present holdback, or whatever they want to call it, and they are calling it everything, Senator, as you pointed out, they are holding back $200 million for urban renewal. They are holidng back $200 million for desperately needed water and sewer facilities. They are holding back $200 million for public housing and they are holding back another $200 million for transportation.