I think it is important to trace the history to realize what has been happening. And when impoundments reach $11 billion, as in the case today, I believe it is time for Congress to begin to reassert its prerogatives.

Senator ERVIN. I think there is an increasing feeling to that effect in the Senate. I cannot refrain at this point from saying these hearings were sort of mentioned the other night when Howard K. Smith interviewed the President. This is a verbatim copy of the interview. Howard K. Smith said:

There is another assault coming from another quarter, and I don't know whether you are aware of it, but tomorrow morning, Senator Ervin begins hearings on the impoundment of funds by you which had been appropriated by Congress. It is said that several billions of dollars that Congress is appropriating for things like dams and so on you have refused to spend, that this violates the constitution and deprives Congress of its main power, the power of the purse.

The President responded:

Mr. Smith, when I was a Senator and a Congressman, particularly when I was a Senator and a Congressman with a president of the other party in the White House, I played all those games, too, with very little success. These games are going to be played. The efforts will be made, it is true, by Members of the Senate and Members of the House, and some of them with the very best of intentions, to hamstring the Executive, the President. When it is the proper thing to do, it will be done.

I take it, Mr. Cooper, you recommend and you think the time has come when it is the proper thing to-I would not say hamstring the President-but to assert the power of Congress to control expenditures?

Professor COOPER. I would not deny that this is not the best of all possible worlds. We are not going to attain perfection. If Congress steps in to reassert its prerogatives, there will probably be some money spent that ought not to be spent. But on the other hand, what are the possibilities the way this practice is developing? It seems to me it is time for balance, legally.

Senator ERVIN. In other words, if the President can take the total appropriations of Congress and spend all of those which are pleasing to him and to impound those which are displeasing to him. the President, in effect, will be usurping and exercising the power of Congress over the purse; will he not?

Professor COOPER. I think so emphatically. I think you also have to remember that history does not stop. If the Executive continues to be successful and is not challenged, there are further stages of development yet to come. Mr. Weinberger was asserting the inherent power of the President to impound today, which is something I do not think any president up through Eisenhower would have asserted, and the Executive is impounding on a much broader basis and scope than ever before. Soon, if this continues, it too will be precedent.

Professor Bickel is a better expert on this than I, but contained in the notion of inherent power is the notion of unlimitability. Thus, if present assertions and practice are not challenged, at some point the Executive is going to tell you that you cannot even limit it by law because it is inherent power. That will be the next stage.

Professor BICKEL. Professor Mansfield and Mr. Weinberger this morning are introducing at least a germ of that notion.

May I inquire, Senator.

Senator ERVIN. Yes, go ahead. I apologize for interjecting myself. Professor BICKEL. It is really your subcommittee.

I wanted to come back to something Mr. Weinberger said this morning, and this put me in mind of it. On the history of it, without purporting to have precise knowledge he gave it as his impression that impounding, not reprograming, but impounding-that this goes back at least to President Lincoln and the Civil War. My impression had always been that Lincoln spent every penny he could get out of Congress during the Civil War, by no means impounding. In your historical studies, which are certainly the best things we have heard since these hearings began, by a long shot, in reviewing the history of the thing, have you come across anywhere any notion of President Lincoln impounding, or anything of that vintage?

Professor COOPER. I would suggest that he was reaching into left field on that one. During the Civil War, when people thought that Washington itself was going to fall and Congress was out of session, President Lincoln did a lot of things that were illegal. He may have withheld some funds.

Professor BICKEL. But it would be all the more interesting to find that this particular illegal thing had not been done by President Lincoln.

Professor COOPER. Surely, and that is far more probable. But if it was done, I think no Presidents in the 19th century except under those extraordinary kinds of conditions would have thought of doing it, and it was promptly forgotten.

Professor BICKEL. It sounds to me inherently unlikely. I can understand Lincoln trying to impound some Confederate funds, but not Federal ones.

Professor MANSFIELD. Well, he might, for bargaining or disciplinary purposes, want to impound a particular appropriation. In those days appropriations were awfully specific line items. I do not know whether there has been a case where some spokesmen on behalf of the President approaches a Member of the Congress, House or Senate, with a suggestion that, to take a hypothetical example, votes for the SST are very much needed and if you do not see the way clear to voting for it, I hope you will understand why such and such an appropriation that you displayed a good deal of interest in will be impounded.

Professor BICKEL. I think that is unlawful action; something like approaching a Member of Congress and saying: if you do not vote for the SST, you will understand why I am going to bug your phone or send the FBI after you. You could, but in my judgment, that is simply an unlawful threat.

Professor MANSFIELD. There are certainly, in the processes of bargaining back and forth between Members and committees and executive officials, situations where an item of business known to be of great concern to the other parties sometimes does not seem to get off the ground or move along until some reciprocal evidence of accommodation is forthcoming. I do not know whether the President does that kind of thing.

Professor BICKEL. But there is a distinction between the kind of bargaining between the President and the Congress which rests on

the exercise or the threat of exercise or the threat of nonexercise, or the nonexercise of power which legitimately belongs to each on the one hand, and on the other, the kind of bargaining between President and Congress which rests on the threat of exercise of powers that the President does not lawfully profess, or that a Congressman does not lawfully possess. But, we must differ on this.

Let me go on for one very brief moment to Professor Maass's suggestions, which I thought were extraordinarily enlightening and really point, I think, the way to the ultimate solution. I have one bone to pick with you. That is, that is those hearings, now a couple or 3 years ago, established irrefutably the constitutionality of the lying on the table practice, they did not do so to my satisfaction. I would think that the one clearly lawful alternative that you suggested is the lying on the table in both Houses of Congress with an opportunity to hold hearings, lying on the table for a substantial period of time with an opportunity to hold hearing, and by legislation, or perhaps by the pressure of hearings, dissuade the President from doing it. But that is a minor point in what seems to me structurally on the whole a most useful suggestion.

Professor MAASS. I am aware of our disagreement in those earlier hearings. I mentioned to Professor Cooper right before we came in this afternoon that I no doubt should take this into account, and I promptly forgot to do so.

Professor COOPER. Professor Bickel, I wrote an article several years ago trying to show that the veto was constitutional, and I thinkaside from the committee form-that a very good case can be made for the constitutionality of the veto on the ground that it is a contingent provision contained in the original act.

Professor BICKEL. Not to my satisfaction, but I do not necessarily have a casting vote.

Professor STOLZ. If I could interject, going back to Professor Bickel's question about history, it is true, is it not, that in the earlier period, the controversy between Congress and the President with respect to spending, there was specificity, and there were many instances in which the President did not comply with some kind of specific direction.

Professor COOPER. There is no doubt that the whole history of the spending power, as Professor Mansfield knows better than I, is a tangled web of congressional direction and executive violation of such direction. Wilmerding's conclusion in the 1940's was that Congress never successfully enforced the notion of a specific appropriation and control of transfers.

Professor STOLZ. But the real point, is it not, is that at least as far as history is concerned, depending on how you define impoundment, you could treat most of those as impounding controversies, that the President was not spending money the way some people in Congress at least thought he ought to be.

Professor COOPER. True, but there is this important difference: that the President was spending the money somehow. What we are talking about is actually reserving money and choosing amongProfessor BICKEL. The point of entry into reprograming or whatever, was a lack of specificity in the original appropriation. That is a different thing from saying: no aquarium.

Professor STOLZ. But that is not what most of the impoundments that we have had have been. Almost all of them were not that one. At least the administration, with perfect correctness says, that all they were doing was deferring.

Mr. ABRAMSON. You were talking before about the growth of the philosophy which lends support to the notion of inherent powers of the Presidency. I think this morning, Mr. Weinberger's statement on page 8, reflects that attitude. However, we did not bring it up at that time. He says: "This is an area where the legislative and executive branches share the power over a single object: federal funds." I think the word "share" is very revealing. Perhaps this is what you were talking about.

I got the feeling from your testimony Mr. Mansfield, when you said on page 9, that "Impoundments are here to stay." That we were quite content about that state of affairs. Are you accepting that role of the Executive? Could you explain that a little bit more for us?

Professor MANSFIELD. I guess I would agree with that. I do not appear as an automatic admirer and defender of the executive branch, nor an automatic critic. I am trying to take a detached view here and it seems to me in a detached view you underestimate the ingenuity, resourcefulness and so on of the executive branch if you suppose that they will not feel that they share that power.

Mr. ABRAMSON. You are saying that regardless of what Congress does, the executive branch is still going to find some way to achieve its objectives, perform its managerial duties even if that policy is achieved by impounding congressional policy and intent.

Professor MANSFIELD. Managerial duties, no. I view impoundments here as a special case of a very general phenomenon. People want to get something done. It takes an act of Congress and it takes money to get that done. They work for a law and an appropriation; they get through a legislative committee, and then the Appropriations Committee may impound on them; there is not any money. Or they get an appropriation and then the President appoints somebody in charge of the thing who has altogether different notions, and it does not get done for want of sympathetic administration.

There is a whole variety of devices and successive steps and stages of hearings, investigations, appropriations, appointments and all that kind of thing at which ardently held wishes either get advanced or get frustrated. Impoundment is one way of frustrating that view. Mr. ABRAMSON. Considering the chairman's suggestion about the item veto, would you still say that impoundments would exist? Professor MANSFIELD. I think quite likely.

Mr. ABRAMSON. HOW?

Professor MANSFIELD. No prudent President or spokesmen for the President is going to say; if he can avoid saying: The President can do as he pleases. You try to pin him to that view and make that the logical consequence of what you can extract from him, but he is not going to volunteer that view. He will, as a matter of tactics, try to limit the issue that he has to defend. Instead of asserting an uncontrolled inherent power to impound anything he wants, he will start talking about the merits of this particular thing: we have inflation now and he has to confront that; we have this or that sort of priority and so he hopes to bring in as allies any who will agree

with him on the particular issue and not put it as a general issue of principle on, which automatically he would put everybody on his opponent's side.

Mr. ABRAMSON. Just one more question: It was suggested during these hearings that legislation be drafted to limit the President's authority to impound to a set percentage of the appropriated amount. I think the figures used were two or three percent. Do you think that will stop impoundments?

Professor MANSFIELD. I doubt it.

Mr. ABRAMSON. Why not?

Professor MANSFIELD. To say that the executive branch must, in all circumstances, spend at least 90 percent of every appropriation? I cannot imagine that that kind of rule would stick; it does not make

sense.

Professor BICKEL. Subject to the provisions of the Anti-deficiency Act which allow for reserves, for contingencies, for changed conditions or what not, but surely you are not saying that if Congress were acting in a statute like that within its constitutional power, and if the intent of Congress were clear-subject, no doubt, to the hedges of any statute, construction or what-not-that the system is such that the President will, in the face of congressional power, act unlawfully? He has abided by the Cooper-Church amendment and he made a very strong argument that that was cutting into Executive power. I think we are a government under law.

Professor MANSFIELD. I would agree that in any field such as the Cooper-Church amendment, where the stakes got to be very high, the Congress can make something stick. But I cannot imagine a general statute that in all circumstances, 98 percent of all appropriations have to be spent within the fiscal period would stick.

Mr. ABRAMSON. It just seems to me that you are depicting and demonstrating the fantastic drive and motivation of an Executive to have his way.

Professor BICKEL. You make him out a sort of elemental force that will not be stopped.

Professor MANSFIELD. This is not just a President and his personal will and views that I am trying to echo. I am trying to echo what would be his specific response to a whole set of recommendations coming up about this or that matter, and what would make sense to him in the individual case.

Professor BICKEL. But the law; the law.

Professor COOPER. Professor Mansfield is making a political science argument, not a legal argument, and it has a political science answer. Argument on this plane does not detract from the law, because whatever validity the legal argument has, continues to pertain unmitigated. Still you are not going to meet his argument by citing the law. But I think there is an answer to it.

He is saying that what we have here is a struggle between the branches and that argument over the proper forms of action is somehow irrelevant or unimportant or ineffective in the context of the power struggle that is going on. Well, and there is a continuing struggle going on between Congress and the President to effect and get their wishes. However, argument over the proper forms of action is far from unimportant. When the struggle proceeds from substantive issues to what the ground rules of struggle are, and that is