effectively what has been happening since the Executive keeps changing the rules, then it is essential for Congress to engage the Executive in this area in order to protect itself, it is essential for Congress to oppose the constant redefinition of the ground rules which continually favors the Executive.

And, Congress can shift its focus politically, as it may be beginning to do in this hearing, so that it begins to say to the Executive: "You are not going to change the rules of the game on us every decade." Professor BICKEL. There is a feeling abroad-I do not know how widely shared that the power of the Presidency has increased, is increasing, and ought to be diminished. I cannot bring myself to believe that two centuries after such a resolution was first proposed in a parliament, that feeling can no longer be put into effect by the processes of law. There may be questions of the degree to which it ought to be put in effect, but it surely is true that if a majority of Congress shares it in any respect, it can give it body and force in law. Professor MANSFIELD. I am not denying that; I am just saying that you do not get that

Mr. EDMISTEN. If you will excuse me; the chairman asked me to announce that when he departed a moment ago, he was going to vote on a very important issue: the SST. As soon as he votes, he will be back to hear Mr. Raymond Coulter, Deputy Solicitor of the Department of the Interior, and Mr. Warren J. Wisby, who is Director of the National Fisheries Center and Aquarium. a matter which you two gentlement mentioned this morning is quite controversial. We will also hear Mr. Karl S. Landstrom, attorney at law, formerly Director of the Bureau of Land Management.

I want to apologize to all of you gentlemen, but I know you understand how things work around here. Maybe that is why we get things impounded on us sometimes.

Professor CooPER. May I make one comment? It is well and good to cite the law, but the critical issues are: what are the understandings about the law and what is legitimate and illegitimate under it? That is why the fight about what the rules of the game are is so vital. In the twenties, what people thought was legitimate and what they did not think was legitimate regarding impoundment were quite different from what they are today. That is why it is terribly importantnot unimportant at all, really-for Congress to fight to keep its sense of what is legitimate or not legitimate governing. Insofar as it gives up on these kinds of questions it is going to lose its prerogatives, despite the fact that you can point to formal provisions of law. I think that is the significance of Professor Mansfield's point.

Professor MANSFIELD. I do not disagree with that. I am just calling your attention to what seemed to me the facts of life. Here the Congress has appropriated great sums of money, and then somebody asks for a tax surcharge. That brings you into the Ways and Means Committee. Who changed the rules? Who has the jurisdiction in Congress over expenditures and expenditure ceilings? The Appropriations Committee?

Professor MILLER. Mr. Bickel is not a legal realist, but I take it he would agree with you.

Professor MANSFIELD. The Ways and Means Committee says there are going to be ceilings in there and impoundments and what not. or there is no tax.

Mr. ABRAMSON. In the Legislation Reorganization Act of 1970, there is a section which says something to the effect that the respective committees will be given cost-benefit studies of all the appropriate bills and so on, from the Comptroller General. It just seems to me that to a certain extent, that language gives the intent that Congress is going to determine on its own the efficiency and economy of certain legislative measures. And this raises once again the role of the Executive.

Professor MANSFIELD. I do not object to that at all. I wish them well and expect that they will do their best, but they will work selectively.

Mr. ABRAMSON. What happens, for instance, when the Congress determines on the basis of this cost-benefit study that a certain legislative approach is the cheapest way to accomplish a given objective? Then the Chief Executive will say: "Well, I think we can do it for $10 million less," or "Let's don't have it at all?" Whose judgment should prevail?

Professor MANSFIELD. The 1970 act, if I understand it correctly. and you will correct me if I am mistaken, adds or attempts to add something to the Comptroller General's authority and presumably authorizes him to increase his staff so that he will be able to make cost-benefit studies. Those do not go beyond reports, do they, to Congress? They do not have any force or effect of law?

Mr. ABRAMSON. I do not know. What difference would that make? Professor MANSFIELD. It means you can hire some more cost accountants now and produce more cost-benefit analyses

Mr. ABRAMSON. My point was; that it seemed to be that Congress expressed its intent through the Reorganization Act; that we're going to determine the efficiency, economy, and the productivity of the particular program or the appropriations of a particular program; and that raises once again the question of the role of the Chief Executive as the manager of our budget and economy.

Professor MANSFIELD. It seems to me that what that does is to give congressional committees some rival figures to those that come out of the spending agency on costs and benefits and so on, and to that extent, help them in making whatever choices they want to make. I do not understand that the Comptroller General's reports by themselves, have any force or effect on the appropriations statute. Professor MILLER. Gentlemen, I just have one question, if I might, to all of you. A couple of comments, very brief at the beginning.

First, with regard to Mr. Mansfield's testimony, I was a little startled to find the way he defined "impoundment." Lewis Carroll has told us that you can define things any way you want to define them, but I think what you call impoundment most people would not. Certainly the matter of judicial action and so on is not impoundment the way the committee defines it.

Second, I would hope the committee would take up Professor Maass's suggestion and try to draft some legislation to move along this way. It certainly seems to me to be a most productive suggestion. Mr. ĚDMISTEN. We are going to call on our consultants for that. Professor MILLER. I was afraid of that.

The basic question, though, is this: as I understand, and this is for you, Mr. Mansfield, since you wrote the book on the GAO, the

GAO has authority or power to say that when an expenditure is not properly made, to disallow expenditures. Now, is there anything in the statute, as you see it, and this is a general question to all three of you gentlemen, that would make it impossible for the GAO to look at and to report to Congress all instances when the money was not spent, a report on a periodic basis, quarterly basis, semiannual basis, and so on? Could not the statute be read that way, to give them authority to do that, and if it does, as a matter of policy then, would you think it would be a good idea?

Professor MANSFIELD. I do not thing that there is any doubt that the Comptroller General has had that authority ever since 1921, barring arguments about some particular types of Government agency. For a long time, Government corporations challenged his right to get in and the Federal Reserve or the FDIC or some other agencies might today contest how far he could go into their books. But, broadly across the Government agencies, I do not think there has been any doubt that he has the right to investigate and to make reports on the honesty or efficiency

Professor MILLER. Oh the failure to spend. Do you think as a matter of policy it would be a good idea?

Professor MANSFIELD. Institutionally, he is more or less committed to trying to limit expenditures, I suppose, so he might collect information.

Professor MILLER. No; I differ from that. It is to see that expenditures are made in accordance with law.

Professor COOPER. Without much reflection and reserving the right to change my mind, after I have thought about it for more than five minutes, I do not think that that would be a good idea policywise.

It seems to me you have to deal directly with the Budget Bureau. There is no reason why the Budget Bureau, in line with some kind of reasonable requirements, should not do the work of reporting impoundments to you.

Professor MAASS. I would just add that in my statement I suggested that any such legislation should provide that the President would make the recommendation, would send the proposed order impounding funds to Congress, just as the President sends the proposed estimate of supplemental money that he may need to Congress. My feeling here is that if you put this responsibility on the President, it is not likely to be exercised as frequently as if you devolve the responsibility on the Bureau chiefs.

Certainly we discovered this, did we not, in the 1950's when the authority to assert executive privilege to withhold information from Congress was used by Bureau chiefs. Since then, beginning in 1960 with President Kennedy, and continuing with President Johnson and President Nixon, they have said that only the President personally will use Executive privilege in this regard, and I believe that such a procedure has reduced the number of times that Executive privilege has been used. This is important.

Now, I know that you are not suggesting that the Comptroller General do anything other than report on impoundments, and I can see nothing wrong with the suggestion, but I think it is much better to put the finger on the President.

Professor MILLER. The only question, I suppose, that could be raised in this, and this is an observation, is that the GAO can be directed by a Member of Congress, you see, and the President-it is a little hard for the Member of Congress to direct the President. Professor MAASS. Yes.

Professor MILLER. I have nothing further.

Mr. EDMISTEN. I would just like to ask Professor Cooper what he thought of Mr. Caspar Weinberger's testimony this morning, especially when, in my view, he was saying that the Director of the Office of Management and Budget was about the second most powerful man in the U.S. Government.

Professor COOPER. My view of his testimony is, as Professor Bickel suggested afterwards in some conversation, that he did a very good job with a very bad case. Still, the fact that a man of this importance and an agency of this importance are now asserting the kinds of claims we heard today, should be a danger sign for those concerned with congressional prerogative, especially in the context of history. Professor BICKEL. The conversation you speak of was off the record, but I might as well put it on the record. I do not want to seem to suggest that a lawyer does not perform much of a trick that entitles him to high distinction in his profession when he puts up a good argument in a pretty good case. But it is when he comes in with a lousy case and makes an argument that rises to the level of plausibility that he shows his true professional strength, and that is what I thought Mr. Weinburger was doing.

Professor COOPER. I would suggest that it only rises to a level of plausibility because we have had a decade and a half in which we have forgotten what the original understandings and limitations were, and in which the Executive has successfully extended this practice by great lengths.

Professor MILLER. I am only saying I did not find it plausible. Professor STOLZ. Since everybody is throwing in their two bits. I will add that I thought it was pretty plausible.

Mr. EDMISTEN. On behalf of the chairman, I would like to thank all three of you gentlemen very much. I think it has been very beneficial, and I hope we can schedule more roundtable discussions of this type.

I shall take your suggestion, Professor Miller, and request that our consultants be about the business of drafting a statute, to which you referred.

Professor BICKEL. We shall pass your request on.

Mr. EDMISTEN. Mr. Coulter, the vote is in process. The chairman has asked me to request that you begin, because I know time is of the essence to you and we appreciate your patience very much.

For the record, we have with us as witnesses, Raymond C. Coulter. Deputy Solicitor, Department of the Interior, and Dr. Warren J. Wisby, Director of the National Fisheries and Aquarium, Department of the Interior.

As our panelists will recall. this morning in the testimony from Mr. Weinberger and his assistant, the matter of the National Aquarium was very much in the forefront. We would appreciate it if Mr. Wisby would simply relate to us the chronological events involving the National Aquarium. Then we shall have some questions.

STATEMENTS OF RAYMOND C. COULTER, DEPUTY SOLICITOR, DEPARTMENT OF THE INTERIOR; AND WARREN J. WISBY, DIRECTOR, NATIONAL FISHERIES CENTER AND AQUARIUM, DEPARTMENT OF THE INTERIOR

Mr. COULTER. I might, by way of preface, indicate that it is our understanding that what the chairman has asked is that he would like a chronological history of events with reference to the aquarium. Mr. EDMISTEN. Yes, sir.

Mr. WISBY. The chronological events begin in 1962, with authorization, at which time $10 million was authorized for construction of the building. The act says that the $10 million were to be repaid within 30 years from admissions which were to be charged, and that all maintenance and operating charges would also be paid from admission fees.

In 1964, we received our first appropriation of the construction amounts, and this was in the amount of $260.000, which was 1-year money earmarked for 1964, and which was to be used for planning of the facility.

In 1965, we received an additional $500,000, again 1-year money to be used for planning of the facility. Those amounts were obligated. Mr. EDMISTEN. You mean that they were not impounded?

Mr. WISBY. No; we obligated those amounts in planning for the facility.

In 1966 we received our first O. & M. appropriations, part of which was for operation of the existing National Aquarium in the basement of the Commerce Building. That amount was $214,000. The remainder of the $10 million, $9,240,000, was also appropriated. Of that amount, $50,000 was used in planning for construction; $9.1 million was placed in reserve.

In 1967 an additional $15,000 was spent for planning. The $9,100,000 continued in reserve, we might say, until 1969 when it surfaced briefly. At the time we had the printing presses ready to print the bidding documents, it submerged again, went back into reserve, and has been, since that time, unavailable for our use.

The site was chosen; all the planning is completed; the design is completed; working drawings are on hand. The building was designed, beginning in 1966 to be built for the appropriated sums in 1969, which is when the architect, in fact, delivered his working drawings, and was finished with the project. The terms of the contract with the architect were such that had no bids come in under the appropriated amount that we had, he would have had to redesign the project at his own expense.

The General Services Administration, which is charged with constructing the building, and the architect apparently were convinced that the building could be constructed for the appropriated sums at that time.

Professor MILLER. No contracts or invitations for bid or anything like that?

Mr. WISBY. No. We stopped the process just at that time; when the moneys were again impounded for reasons of economy.

Professor BICKEL. May I ask what these two items, reprogramed for pay costs, are?