The reaction within the Budget Bureau to the need to find grounds for controlling the rate and tempo of program implementation as well as blocking particular projects or aspects of programs per se was one of bewilderment. J. D. Williams' excellent case study of impoundment during the war demonstrates this clearly as well as the character of the ultimate executive response. Thus, Williams notes that one senior Budget Bureau official, in responding to an internal request for his opinion, replied that the savings doctrine might be stretched to include cases where changed conditions subsequent to the appropriation altered a situation so that the full appropriation for a program could no longer be efficiently spend, but added that "stopping specific projects went far beyond general economy and efficiency" and "was approaching an item veto." Another senior official told Williams that

"There was unanimous opinion in the Bureau that no statutory authority existed for impounding funds under 'continuing' appropriations for specific projects as distinguished from annual appropriations for maintenance and operation of government agencies where apportionment was required under the Anti-Deficiency of 1906."

The Budget Bureau's search for grounds upon which to base the extension in practice of the scope of withholding turned up little except the war power. Thus, the Bureau argued that the President had power to defer or suspend construction projects under his authority to prosecute the war. Still, the Bureau was reluctant to press the war power argument or even to give it primary emphasis. It decided, rather, simply to put the best face on new practice that it could and to stress the President's power, through the Budget Bureau, to manage administrative operations economically and efficiently. In short, essentially the Bureau continued to rely on the Dawes doctrines, despite the changes in circumstances and effect.

Accordingly, in a letter to Senator Russell, drafted for him by the Budget Bureau, President Roosevelt replied to Congressional criticism over impoundment as follows:

"I cannot believe that you or Congress as a whole would take exception to either of these purposes [to prevent deficiencies and save money] which are common to sound business management everywhere. In other words, the mere fact that Congress, by the appropriations process, has made available specified sums for various programs and functions of the Government is not a mandate that such funds must be fully expended. Such a premise would take from the Chief Executive every incentive for good management and the practice of common-sense economy. This is particularly true in times of rapid change in general economic conditions and with respect to programs and activities in which exact standards or levels of operation are not and cannot well be prescribed by statute."

With the war's end many in the Bureau felt it would be advantageous to secure statutory authority for impoundment. This was true for several reasons. On the one hand, the war power could no longer be relied upon. On the other hand, as the J. D. Williams study reveals, not only did the Budget Bureau realize that grounding impeachment on the President's authority to manage the executive branch did not confer authority to negate Congressional purpose; in addition, many in the Bureau were unsure of the President's authority to effect savings in cases that involved even partial non-fulfillment of program objectives stated in law, e.g., withholding when changed conditions made full implementation within a particular budget year uneconomic or inefficient. In pressing for statutory authority the Budget Bureau did not claim or seek any substantial extension in the grounds for impoundment. Rather, both the report it and the GAO submitted to Congress and the language it proposed indicate a traditional and restrained approach to impoundment. All the Budget Bureau requested was confirmation of the doctrine that appropriations were not mandatory and authority to effect savings in cases where they could be made without interfering with programs or where new conditions or developments subsequent to the appropriation made full expenditure wasteful or inefficient in terms of that program's objectives. And, as understood at the time, that is all that the new language in Section 1211 granted.

Since 1950, however, executive claims regarding the President's authority for impoundment have expanded so greatly as to establish virtually a qualitative difference between executive contentions before 1950 and executive contentions after 1950. This alteration in the character of executive claims did

not come about all at once. Nor in justifying its actions has the executive ceased to rely on the doctrine that appropriations are not mandatory or the statutory authority in Section 1211 to effect savings through greater efficiency or because of changes in conditions. However, the executive now interprets these bases of authority as if they were blank checks and accords little or no recognition to the circumscriptions or limits they were originally understood to include.

It is not surprising that this is the case given the great success the executive has enjoyed since the mid-1950's in expanding the number and scope of particular impoundments. Indeed, this success has been so great that the executive has been encouraged to extend its claims to power or authority in a novel and striking manner. It thus has begun in recent years to justify the withholding of funds by asserting that the President has inherent, and by implication entirely self-sufficient and even unlimitable, power to impound under the clauses of the Constitution that vest executive power in him. Note, for example, the following words of the Deputy Director of the Office of Management and Budget, Caspar W. Weinberger, before another Senate subcommittee just a few weeks ago:

"In addition to the specific statutory authority provided by the Antideficiency Act, authority for the President to establish reserves is derived basically from the Constitutional provisions (Article II, section 1) which vest the Executive power in the President. In addition to the President's general responsibility as Chief Executive there may be involved his specific functions as Commanderin-Chief, his responsibilities with respect to the conduct of foreign affairs. and the requirement that he 'take care that the laws be faithfully executed.' Ironically enough, however, despite the enormous inflation of executive claims, it still remains at least somewhat unsure of its grounds. We may note. for example, that Deputy Director Weinberger, when testifying a few weeks ago, could not rest content with citing inherent power as a ground of authority, even though he supplemented it by citing the doctrine that appropriations are not mandatory and the statutory authority provided by Section 1211. Despite the ample justification these claims provide for the recent impoundment actions of the Nixon Administration if they are in fact correct, he went on to cite the need to manage expenditures so as not to exceed the debt ceiling, the possibility that existing expenditure limitations or ones established in the future by Congress might be exceeded, and finally even the Employment Act of 1946 which makes it federal policy "to promote maximum employment. protection, and purchasing power." All this may be good legal strategy, but the very addition of such a potpourri of highly tenuous justifications strongly suggest some continuing uncertainty regarding the strength of the executive's basic or primary grounds.

A fourth and final lesson that can be drawn from the history of the development of impoundment from its beginning in 1921 to the present day is that executive exercise of this power exists entirely at the sufferance of Congress. This fact has been obscured by the character of executive claims in recent years as well as by an excessive and unjustified amount of deference to these claims as a consequence of the success the executive has enjoyed in impoundment. Thus, for example, during the fight over HEW Appropriations for fiscal 1970 the Washington Post noted that the "conventional view is that, as one senator put it a few months ago in a similar squabble, 'no power on God's earth can force the President of the United States to spend that money if he doesn't want to.'" If this was the "conventional view" in 1969, it was neither true to history nor correct. It is tantamount to the proposition that no one can force the President to execute or obey the laws.

In truth, at least theoretically, even the executive's authority to impound for purposes that go beyond the statutory power granted in Section 1211 remains weak. In other words, to the extent that savings effected by withholding do not derive from greater efficiency or impair programs for reasons other than because conditions specific to a paticular program have changed so as to make full implementation wasteful, the grounds or justification for withholding are weak. Nor does the assertion of inherent executive power to impound remedy the situation. Not only is the "inherency" of any power that requires more than 170 years to become apparent dubious; in addition, this assertion involves the tenuous proposition that the President's power under the Constitution to insure that the laws be faithfully executed permits or

allows him to break them. Similarly, claims based on the debt ceiling, Congressional expenditure limitations, and the Employment Act flounder on the possibility of satisfying these requirements by means other than impoundment or at least asking Congress to resolve the difficulties rather than assuming plenary power to do so. The fact that the executive may regard impoundment as a convenient and even essential means of achieving widely agreed upon policy objectives, e.g., inflation control, does not mean that it is a legal one. Thus, fundamentally the best case the executive has for impoundments that impair or negate programs is simply precedent, simply the fact that especially since the mid-1950's it has done so repeatedly. Since the Constitution is a living rather than a static document, this is not a negligible or unimportant basis for power.

However, whether the executive has authority to impound funds in ways that impair or negate programs in the absence of Congressional instruction or direction is not really the crucial point. The question of whether the power to impound exists at the sufferance of Congress rather hinges on whether Congress by law can limit or forbid impoundment. And here both theory and precedent overwhelmingly support Congress' authority.

In theoretical terms Congress clearly has the power to direct and limit the character of executive discretion. This is what the law making power is all about. Indeed, its general power in this regard can only be convincingly questioned if a clear violation of some expressly granted executive prerogative is involved, and impoundment is not such a prerogative. In terms of precedent or practice, even though the past decade represents a highpoint in expansive use of the withholding technique, all the Presidents elected in the 1960's have in one way or another bowed to Congressional power over impoundment when it has been asserted. President Kennedy compromised the Administrations differences with Carl Vinson over the RS-70 when Vinson put mandatory language in the House bill. President Johnson in order to avoid expenditure for two nuclear frigates bowed to a legislative provision that required him to certify that such spending would not be in the national interest. President Nixon on two occasions has vetoed Appropriations Bills because they contained mandatory expenditure provisions that he acknowledged would force him to spend money at a rate or level he opposed.

There is, then, little doubt that control over expenditures remains where the Constitution placed it. Congress has the option to do more than simply complain about impoundment. It can, if it chooses, abolish it entirely or simply continue to make particular expenditures mandatory on occasion. Nor is it limited to such Hobson's choices. It can also seek means of establishing a far better balance between the needs of the executive for flexibility and its own prerogatives as law maker than currently obtains.

Mr. EDMISTEN. Professor Maass?

Professor MAASS. Mr. Chairman, I do not have a prepared formal statement. I am speaking from rough notes.

Professor Cooper has demonstrated, among other things, that the Executive's power to impound appropriations is exercised by sufferance of the Congress. Congress can, by legislation, deny the President the right to impound, or Congress can set the conditions under which the President can impound appropriations. Such legislation would be constitutional and binding on the President, although twothirds congressional support would be needed if the President were to veto such a bill. Professor Bickel has put it just right, in my view, when he said that the President has discretion in the absence of congressional action, but that when Congress acts, then this discretion is absorbed.

Cooper has demonstrated further that apart from the Antideficiency law as amended, Congress has not passed general legislation to control the President's use of impoundment because, in part, the Members of Congress have been ambivalent on the subject. They have had conflicting goals. On the one hand, they believe so strongly

in preventing waste that they are willing to give the President discretion to do so. Studies have shown that economy and the prevention of waste are among the most widely shared norms of Members of Congress as a whole. On the other hand, most Members feel strongly that certain programs should be handsomely funded; usually programs under the jurisdiction of the legislative committees on which they happen to serve. And most Members are anxious to preserve for Congress a significant role in determining national priorities, which dictates that they limit the President's discretion.

Senator Ervin's public announcement of these hearings illustrates this ambivalence. At one point, he says that:

This is not to say that I wish the Executive Branch to expend the taxpayers' money foolishly. On the contrary, I advocate a balanced national budget and ever greater economy in the government.

At the same time, he is concerned about giving the President discretion to withhold funds because this procedure is one of those "that are eroding the powers of the legislative branch."

The response of the Congress in authorization legislation and subsequently in appropriations legislation for many programs illustrates this ambivalence also. Thus Congress will pass legislation authorizing large sums for programs in the next fiscal year and follow this action. a month or so later by supporting the recommendations of the President and the Appropriations Committees to spend considerably less money on these same programs.

Given, then, Congress' capacity to limit the President's discretion on impoundments and its ambivalence of goals to be achieved in this regard, what might the Congress do? Senator Ervin has said that he wants us to, and I am quoting him, "Look for methods by which Congress can reestablish its power of the purse."

On the other hand, Congress can. by legislation, require that all moneys appropriated be spent. But this is too clumsy, too blunderbuss a technique of control. It does not have the flexibility needed to relate the two partially conflicting norms of the Congress.

On the other hand, Congress could do nothing. But this would not be responsive to present concerns, as we see them.

Between these two extremes, legislation could be passed providing, with certain exceptions, that the President submit to Congress orders to impound appropriations and that these orders not be considered to be final until Congress had had an opportunity to review them.

What would be the form, then, of congressional review? There are alternatives.

One, impoundment would not be final until the President's order had laid before Congress for a certain number of days-the waiting period form. Under this form, Congress response to an impoundment order could be either informal or formal. In the former case, objections, if any, could be stated on the floor, or committee hearings could be held in which such objections would be stated, and the President might respond to these by changing or modifying his proposed impoundment order.

If Congress felt strongly enough that the President was wrong in his impoundment order, and the President did not modify it, Congress could pass legislation to nullify it, which would be a formal response.

A second alternative would be that an impoundment order would go into effect if neither House of Congress vetoed it by resolution within so many days. This would be the legislative veto form. In that case, the President would propose his impoundment. If a Member of Congress introduced a resolution of disapproval, hearings would be held on this before the appropriate committees, the resolution would be reported to the full House, and the House would have the opportunity to approve the resolution of disapproval or to reject it.

A third alternative would be that impoundment orders would be final when the relevant committees of the House and Senate, presumably the appropriations committees, approved them by committee resolution.

Now, we are inclined to reject the third alternative, the committee form; not because it is unconstitutional. Testimony before this very committee in an earlier set of hearings proved, I believe conclusively, that this form is constitutional, and President Nixon agrees that it is. But we would reject the third alternative, because it seems to represent the wrong tradeoff between the roles of the Executive and of Congress in the light of Congress motives. And furthermore, we believe that Congress should not by law delegate final authority to act in matters like this to its committees.

But as between the first and the second alternative, the waiting period form or the one-house veto, we are not sure which is more sensitively attuned to the interests of Congress.

Now, what might be the exceptions written into such legislation? I said that "with certain exception," the President might be required to submit impoundment orders to the Congress? The legislation might exempt impoundments to prevent waste and to provide for contingencies, as these are defined in the antideficiency law. The legislation might exempt across the board uniform percentage reductions in all programs; for example, the President reduces spending on all programs by 2 or 3 percent. Or perhaps in broad classes of related programs.

In this context, I should mention the question of deferrals. Budget Director Mayo, in his letter to this committee dated May 28, 1969, explained that in many cases, the Budget Bureau did not impound, they simply deferred. Of course, if they defer an expenditure for several years, they may well have effected an impoundment. In the case of deferments, the legislation might exempt any orders that defer expenditures for no more than 6 or 9 months, but proposals to defer the expenditure of appropriated funds for longer periods of time would need to be submitted to Congress.

Now, any such legislation should require, it seems to me, that all proposed impoundment orders would have to come from the President, not from any lower level officer. This would provide protection against the use of impoundment for petty bureaucratic reasons.

Where the Executive wants to revise expenditures by increasing the funds in an appropriations statute, the President must submit to Congress a request for a supplemental appropriation, and Congress must approve this in a new statute as a supplemental appropriations bill. Where the Executive wants to reprogram funds-that is, to use