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AMOUNTS WITHHELD FROM OBLIGATION BY AGENCY AND ACCOUNT (FEBRUARY 1971)

Dollars in millions)

Appendix
page
No.

Agency and account

Amount

$191

200

VRES

151

157 178

Rural Elecunme Administration: cosal grants..

NO. CEO. NO

205 210 209 213

En

225 236 246 273

Funds appropriated to the President:

Appalachian regional development programs...
Military assistance: Foreign military credit sales.
Economic assistance:
Supporting assistance...

............
Prototype desalting planti..
Development loans.....

.-..- .-.-.-.-. .. - -.-..-.
Foreign investment guarantee fund 2...
Inter-American Social Development Institute.
Economic opportunity program.......

Peace Corps: Salaries and expenses..
Department of Agriculture:
Agriculture Research Service:

Salaries and expenses.

Other...
Food and Nutrition Service: Special milk program...

Special milk program................................ .....
Foreign Agricultural Service:

Salaries and expenses (special foreign currency program).............

Other..-.-..-.-
Agricultural Stabilization and Conservation Service: Agricultural conservation program.....
Rural Electrification Administration: Loans.
Farmers Home Administration:

Rural water and waste disposal grants.
Rural housing for domestic farm labor....
Mutual and self-help housing......
Direct loan account................
Self-help housing land development fund

Emergency credit revolving fund.
Forest Service:

Forest protection and utilization..
Forest roads and trails....
Youth Conservation Corps...
Expenses, brush disposal (permanent).

Other.....
Other Agriculture...
Department of Commerce:

Bureau of the Census: 19th decennial census......
Economic development assistance: Regional development programs.....
Participation in U.S. expositions: Inter-American Cultural and Trade Center...
Maritime Administration: Operating-differential subsidies (appropriations to liquidate con-

tract authority).....
Department of Defense-Military:

Procurement: Shipbuilding and conversion, Navy......
Military construction:

Military construction, Army....
Military construction, Navy.....
Military construction, Air Force...
Military construction, Defense agencies...
Military construction, Army National Guard.
Military construction, Air National Guard...
Military construction, Army Reserve.....
Military construction, Naval Reserve...

Military construction, Air Force Reserve..
Family housing: Homeowners assistance fund..
Special foreign currency program.....

Laundry service, Naval Academy.....
Department of Defense-Civil:
Corps of Engineers:

Construction, general...
Flood control, Mississippi River and tributaries..

General investigations ....
Canal Zone Government: Operating expenses..
Ryukyu Islands, Army: General fund........

Wildlife conservation, military reservations.....
Department of Health, Education, and Welfare:
Health Services and Mental Health Administration:

Regional medical programs.......
Buildings and facilities..

Medical facilities construction...
National Institutes of Health:

Neurological Disease and Stroke
General Medical Sciences.......
National Eye Institute.....
Construction of health educational research and library faci
Buildings and facilities....

Other...................
Office of Education:

Higher education........
Community education......

School assistance in federally affected areas....
Social and Rehabilitation Service:

Rehabilitation services and facilities......

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AMOUNTS WITHHELD FROM OBLIGATION BY AGENCY AND ACCOUNT (FEBRUARY 1971) Continued

Appendix
page
No.

Agency and account

Amount

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465

Programs for the aging.....
474 Social Security Administration: Limitation on construction..

Department of Housing and Urban Development:
521 Low rent public housing.....
530 Basic water and sewer facilities grants....

Model cities programs........
Department of the Interior:

Bureau of Land Management:
555

Public lands development roads and trails.........

Other...
566 Bureau of Indian Affairs: Road construction.....
573 Bureau of Outdoor Recreation : Land and water, conservation fund.
584 Bureau of Mines: Drainage of anthracite mines (permanent)...

Bureau of Sport Fisheries and Wildlife:
591

Construction (National Fisheries Center and Aquarium)
595

Federal aid to fisb restoration (permanent)...
Federal aid to wildlife restoration (permanent)..

Wildlife refuge fund (permanent).
601 National Park Service: Parkway and road construction (permanent)...

Bureau of Reciamation:

Construction and rehabilitation.........
Loan program...

....... .................. ....
615

Upper Colorado River Basin fund.. 614

Lower Colorado River Basin development fund.....

Other..
Department of Justice: Federal Prison System: Buildings and facilities.

Department of Transportation:
717

Coast Guard: Reserve training...

Federal Aviation Administration: 728

Facilities and equipment.....

Construction National Capital ai 729

Grants-in-aid for airports..... 732

Facilities and equipment (airport and airway trust fu 734

Grants-in-aid for airports (airport and airway trust fund).

Federal Highway Administration: 737

Forest highways..... 738

Public lands high ways.. 736

Highway beautification.... 740

Highway-related safety grants.. 740

Territorial highways.. 741

Inter-American high way.... 743

Federal-aid highways authorization. 747

Right-of-way trust revolving fund. 748

Forest highways trust fund....

Public lands highways trust fund....
757 Federal Railroad Administration: Grants to the National Railroad Passenger Corporation
National Highway Traffic Safety Administration:

State and community highway safety..

Other.....
Atomic Energy Commission:

Operating expenses....
800 Plant and capital equipment.

Environmental Protection Agency: Operations, research and facilities......

General Services Administration:
809 Construction, public buildings projects.. ..
811 Sites and expenses, public buildings projects...
813 Additional court facilities.. ..

National Aeronautics and Space Administration:
835 Research and development..
840 Research and program management......
862 Veterans' Administration: Construction of State extended care facilities...
976 Atlantic-Pacific Interoceanic Canal Study Commission....
900 District of Columbia: Loans to the District of Columbia for capital outiay.....

Farm Credit Administration:
907 Short term credit investment fund.
908 Banks for cooperatives investment fund....
945 National Science Foundation: Salaries and expenses...

United States Information Agency:
996 Special international exhibitions...

Other
Other agencies..

Total amounts withheld from obligation .....

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1 Prototype desalting activity was shown in the "Grants and other programs'' account in the 1971 budget. Since a mutually acceptable technical plan for the desalting plant has not been worked out between the Israelis and our technicians, the funds are presently shown as u nobligated funds in the "Grants and other programs" on appendix p. 81.

The "Housing investment guarantee fund" shown on appendix p. 90 is for housing guarantees that were formerly shown in the Foreign investment guarantee fund" on appendix p. 88, 1971 budget. Other functions of this fund are now shown under "Overseas Private Investment Corporation" on appendix p 92.

3 $500,000 or less.

under Sverige investment guaranteeds shown on a Grants and other propertween the Israelis budget. Since

Senator GURNEY. Do you have any comparison of impoundment figures of this administration and the previous administration?

Mr. WEINBERGER. Yes, sir. We have, for example, starting—well, the previous administration, you might say, started in 1964. There was 3.5 percent of the outlays withheld in 1964; 4.7 in 1965; 6.5 in 1966; 6.7 in 1967; 5.5 in 1968; 5.4 in 1969; 6.6 in 1970; 6.0 in 1971. These figures are from picking out a particular date and taking the total number of reservations at that time, with all of the warnings that I mentioned earlier about definitional problems.

Senator GURNEY. So as I gather from the figures there, this administration is pretty much following the practice of the previous one?

Mr. WEINBERGER. That is the point I tried to make earlier, yes. We are just about on the average.

Senator GURNEY. You quoted one senator in your testimony. Let me quote another senator here with a strong statement. This was made on the Senate floor:

Do we have a centralized control in this country? Do we no longer have a co-equal branch of government? I had the thought that we had a constitutional responsibility to raise an army; I had the thought that we had a responsibility to appropriate funds. I had the thought that once the Congress passed the appropriation bill and the President approved it and signed and said to the country that this has my approval' that the money would be used instead of sacked up and put down in the basement somewhere.

That Senator was Senator Lyndon Johnson of Texas. I guess it make a difference on which side of the Government you are.

Mr. WEINBERGER. The same transformation that affected Senator Truman.

Senator GURNEY. He changes his mind somewhere on the way to the White House.

Mr. WEINBERGER. I am almost tempted to read a letter received by the President from a member of the House Appropriations Committee last year, in which the President was urged to sign a bill and the sentence is used "There is no requirement in the bill, of course, compeling the release of these funds."

Senator GURNEY. On that note, the committee will stand recessed until 2 o'clock.

Mr. EDMISTEN. Senator Gurney, may I at the request of the chairman, submit these statements and letters for the record ?

Senator GURNEY. Without objection, it is so ordered.
(The letters and statements referred to follow :)

U.S. SENATE,
COMMITTEE ON AGRICULTURE AND FORESTRY,

Washington, D.C., March 24, 1971. DEAR MR. CHAIRMAN: I was grateful for your notification that your Subcommittee is considering the issues involved in Executive impoundments of funds approved by the Congress. The practice raises fundamental constitutional questions, and it also raises great practical concerns in all parts of the country.

I would very much appreciate having the enclosed statement made a part of your hearing record on this issue. Many thanks for your consideration. Sincerely yours,

GEORGE MCGOVERX. Hon. SAM J. ERVIN, JR., Chairman, Subcommittee on Separation of Powers, Committee on Judiciary, U.S. Senate, Washington, D.O.

PRESIDENTIAL IMPOUNDMENT OF FUNDS

TESTIMONY OF U.S. SENATOR GEORGE MCGOVERN, TO THE SUBCOMMITTEE OF SEPARATION

OF POWERS, U.S. SENATE COMMITTEE ON JUDICIARY, MARCH 24, 1971

Mr. Chairman, as you are well aware, the past several years have seen a swift growth in concern over the proper sharing of powers between the Executive and Legislative branches.

To a great extent the new attention to the Constitutional separation of powers has been inspired by the search for presidential authority to prosecute the war in Indochina. Certainly there are profound issues raised by that investigation. They were debated through much of last summer, both in the Congress and around the country.

But your decision to examine the Constitutional questions involved when the executive withholds funds appropriated by the Congress is no less in the public interest. In this case, too, I believe we have an obligation to assure the American people that the Congress is not yielding up its obligations and its rights to a zealous Executive Branch.

I appreciate the opportunity to testify both because I share that general concern and because my own State has suffered major, direct harm as a consequence of Executive impoundments. I know that South Dakota has not been the only victim.

Executive Branch decisions not to proceed with programs and projects which have been authorized and funded by the Congress have the effect of degrading the Congress as a co-equal branch of national government. If there are no effective restraints on his claimed authority, then the Congress is left with virtually no purpose other than to either ratify decisions of the Executive Branch or restrict the Executive by withholding funds. We can make "no go" decisions. But we cannot legislate new programs or projects with any confidence at all that they will in fact become a reality.

A few days ago I read an article entitled “Funds impounded by the President: The Constitutional Issue" by Louis Fisher, an Assistant Professor of Political Science of City University of New York. The treatise was published by “The George Washington Law Review” in 1969.

Reading the article led me to conclude that the constitutional questions involved in Presidential impoundment of funds are indeed close and difficult. The members of this Committee are distinguished members of the bar. I am a layman. You may be sure that I do not come here today with any intention of presenting a legal brief.

I suggest, however, that if you conclude that the power to impound funds is inherent in the presidential office then you should at least consider limiting the circumstances and the techniques under which this authority might appropriately be used.

Louis Fisher's article was published in October of 1969. Writing prior to the time of publication he said "As is true of all instruments of power, impoundment is subject to abuse, but the record of the past three decades suggests that Presidents exercise this power with considerable restraint and circumspection."

However you judge the degree of restraint and circumspection exercised by presidents prior to 1969, you have to conclude that the Nixon Administration does not feel constrained by Congressional decisions to the same degree as their predecessors.

At the present time, $11 billion appropriated by Congress to fund authorized projects and programs is in budgetary reserve. A minimum of 40 programs and projects authorized and funded by the Congress have not been initiated. Last year the Congress, by specific write-ins, provided funds for 140 new water resource project starts. Every dollar has been impounded. Funds provided by the Congress in 1970 for three new reclamation starts and 9 new starts for the U.S. Corps of Army Engineers have been placed on budgetary reserve at least through fiscal 1972 unless the Congress acts.

One of the three reclamation projects, the Oahe diversion project in my home state, was authorized in 1944 as an integral and key feature of a comprehensive program for Missouri River development. Authorizations contained in the Flood Control Act of that year represented a congressional determination that the damaging floods of the Missouri Mississippi system should be brought to an end as rapidly as possible and the flood waters put to beneficial use.

60-337—71- 12

Fort Peck Dam in Montana was already in place. To contain the floods that had reportedly damaged Sioux City, St. Joseph, the Kansas Cities and St. Louis as well as towns and agricultural lands in between, the Congress authorized 5 additional storage dams on the mainstream of the river. Obviously, containing the flood waters of the Missouri would, and did in fact, bring great benefit to the cities and towns on the Mississippi below St. Louis.

Four of the five new storage structures are located in South Dakota. Together they convert the Missouri River in my state from a free flowing river to a vast chain of lakes stretching the entire length of South Dakota. The four reservoirs have permanently flooded over 500,000 acres of valuable river bottom land.

In 1944, recognizing that each of the two Dakotas was going to experience severe economic penalties to provide storage sites for those flood waters, Congress determined that it was obligated to provide compensatory benefits. Fortunately, converting downstream flood water to irrigation use in the Dakotas was economically attractive. With this in mind Congress authorized major irrigation projects for each state as a part of the comprehensive program.

For a variety of reasons, including the sympathy of South Dakota citizens for downstream flood victims, the Oahe Diversion project in South Dakota became the last of the major features of the comprehensive development program to be placed under construction. To make certain that the project conformed to existing law and policy the Johnson Administration submitted a first phase for reauthorization in 1967. The Congress acted favorably in 1968

All South Dakotans were keenly disappointed when the President's budget for fiscal 1971 did not include a request for funds to begin building this long delayed and urgently needed project. The case for the project was so convincing that we were able to secure a $350,000 “write-in" from the Senate to place the project under construction. Although our colleagues in the House were unable to keep the money earmarked for construction purposes it was retained for land acquisition purposes in the final public works appropriation bill. Later both Secretary Hickel and Commissioner Armstrong assured South Dakota people that Oahe was indeed a bona fide construction start.

Mr. Chairman, I have explained the historical situation with respect to the Oahe Diversion project in some detail so that the record will reflect the effort of both the Congressional and Executive Branch commitment to this particular public works project. Certainly the Congress has made its wishes completely clear.

With this background I am sure that you will be as shocked as we were when we learned that the money appropriated by the Congress for land acquisition on the Oahe project had been impounded by the President. To further demonstrate their disdain for congressional decisions, the budget documents made it clear that the Executive Branch contemplates no action on Oahe in fiscal year 1972. They are apparently determined to demonstrate their complete disregard for actions of the Congress, for we have been told now that they are not only halting this project but are also re-examining it to determine again whether it is "economically and financially viable," on the basis of criteria different from those contemplated by the Congress in 1968 and signed into law by the President.

The Congress has consistently refused to grant the President item veto authority. If there are legal and policy justifications for permitting him to assume the equivalent of such authority through impoundment of congressionally appropriated funds, then we ought to assure that he does, indeed, act with restraint and circumspection.

Restraint requires that the authority should be used rarely, I suggest that circumspection requires further that it be used only when there is legitimate doubt as to congressional intent, or when procedures have been established for congressional reconsideration of an earlier decision,

As I said at the beginning of my remarks, I am grateful to this Committee for undertaking this review. I have underscored one specific Presidential impoundment partly because it vitally and adversely affects my state and partly because I consider it a good example of gross abuse of a Presidential authority that may not even exist.

We must find a way to re-establish and maintain the authority of the Congress to make national policy decisions and to require their execution by the President. I have high hopes that your deliberations will achieve that goal.

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