obligation levels for this fiscal year from $375 million to $524 million. For the six months of FY 72, the new level of obligations would be $288 million rather than $70 million. Working just with the money which has already been appropriated by Congress for this program, we understand that HUD could fully fund all contracts that come up for renewal until mid-March of 1972, at which point a new appropriation would be necessary, HUD has assured us that the Department will request this supplemental appropriation sometime later this calendar year if it becomes clear-as we think it willthat Congress will not be able to approve the Administration's grant consolidation proposal prior to December 31, 1971.

As a minimum approach, we can work with this. We may very well have some serious questions about the advisability of including Model Cities in with several basic, hardware programs. However, we will hold those concerns until we have been able to study the Administration's grant consolidation proposal. We would only comment in summing up this recent change of heart on the part of the Administration by saying that the kind of consultation-though with greater quality and frequency-that has occurred these past two weeks is the kind of regular communication that should precede, rather than follow, the presentation of all major legislative issues to the Congress. Prior consultation in this case with both the mayors and the Congress would have eliminated the threat of disasterous consequences posed by the Administration's original plans.

To summarize the funding freeze now being applied to these several, important HUD programs, we deplore the Administration's actions of refusing to utilize $200 million in urban renewal funds, $200 million in water and sewer grants, and $192 million in available public housing contract authority. This amount, nearly $600 million, could be obligated for pending project requests almost immediately if the Administration so desired. We appeal to the Administration to demonstrate its commitment to assist the communities who participate in these programs and who are thereby seeking to solve some of their most critical problems by releasing these funds for use during the current fiscal year. We also urge the Administration to submit a request for a supplemental appropriation for the two vital, housing assistance programs-Sections 235 and 236.

The final program that we wish to bring to your attention this morning is the mass transit program. The much acclaimed Urban Mass Transportation Assistance Act of 1970 which authorized $3.1 billion for the cities was a measure that received the strong backing of this Administration. The House-Senate conferees on that bill agreed to set a $600 million limit on obligations under this bill during Fiscal Year 1971.

It is thus with considerable disappointment that we learn from the Administration's budget that only $270 million is scheduled for capital facility grant reservations during FY 71. After subtracting the funds recently awarded the District of Columbia, the total amount to be made available to the cities for their pressing mass transit needs is a far cry from the level envisioned by Congress last year.

This Committee knows well the extent to which many of our largest metropolitan areas are choking with their own uncontrollable transportation snarl. As in the area of the community development programs which we just discussed, the name of the game in mass transit development is money. Without massive amounts of it, no city in this country will be able to take meaningful steps to solve its transit problems. We urge this Committee and the Congress to join with the mayors in seeking to increase the Administration's actual level of FY 71 obligations under the mass transit program.

Senator ERVIN. If I may interject, I do not know whether or not you saw the program put on by ABC-TV last night, in which Commentator Howard K. Smith called the attention of the President to the fact that this subcommittee was beginning these hearings today. The President stated in substance that when he was in the Congress, he used to play games with the White House.

Do you think this could be likened to just some games that are played for recreation?

Mayor ALIOTO. Let me just say, Senator, on that, that those 300 community leaders that I, Mayors Lindsay, Daley, White, and D'Alesandro brought to Washington to tell them what was going to happen in those ghettoes unless the renewal programs which the Government had generated would continue, that those community leaders gave Congress the impression that they were doing something other than playing games.

Senator ERVIN. Do you not consider the power of the purse perhaps the greatest power that the Constitution gives to Congress? Mayor ALIOTO. There is not any doubt. Those of us who are budget makers in our own cities and those of us who have some control over budgets in our cities know clearly that the power to govern ultimately can be defeated if somebody else controls the money.

Senator ERVIN. Do you not consider that when the Congress makes an appropriation which is in excess of the amount that the President has requested Congress to make, and the President then impounds the excess funds, that the President, to all intents and purposes, is usurping Congress' power of the purse?

Mayor ALIOTO. I think it is very clear in the case of the urban renewal funds we are talking about. Congress made a deliberate decision based upon a documented case. Then the President said, "We are not going to spend this money." If there are games being played, Senator, there ought to be some kind of signal worked out between the President and the Congress on that. But when the matters are as serious as some of the matters I have discussed with you, certainly some signal ought to be worked out for the Executive usurping the Congress of its power by executive fiat.

Senator ERVIN. In the case you are speaking of, the impoundment of appropriated funds which were designated by the Congress to be of assistance in carrying out such programs at the local level as the urban renewal program can bring chaos into the local administration of such programs.

Mayor ALIOTO. There is no question about the chaos it can bring to the local administration of programs.

Let me just give you an example from my own city. There was a time when I had to take on Eldridge Cleaver directly because I believed he was not only espousing violence but also actually training young people for violence. The black leadership in my city stood behind me. In fact, I was able to step aside for awhile and they completed the job in San Francisco. He acknowledged this in a national magazine.

These same black leaders have been working with us now because we have given them the hope that through rejuvenating their communities, we could wipe out the existing problems. The hope that has arisen in 5 years under the urban renewal program has been dashed by freezing these funds. Those leaders who fought once to knock out somebody who trained young people for violence may not feel the same way if these expectations that have been generated by the Federal Government are somehow dashed.

Senator ERVIN. Mr. Secretary, if you want to comment anytime on what the mayor says, it will be entirely satisfactory.

Mr. UDALL. No, as a former administrator, I am very sympathetic to the argument that the mayor makes, and I think the real issue

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is what is the remedy. I think that there has been, in effect, a usurpation by the executive. I am trying to point out that I think that the executive is gearing itself up probably to do more of this than less. I think that Congress, as this committee recognizes, faces a challenge. But the question that interests me is what is the remedy? What does Congress do in reaction to this usurpation?

Mayor ALIOTO. In that connection, Senator, I would like to point out what the remedy ought to be. There are 15 of us who are going this afternoon to the White House to visit with the President, a meeting we have sought to point out to him the urgency of what we are doing. We are going to make a plea, based literally on the desperation of the cities of this country, to unfreeze the money which Congress has appropriated.

Now, once the struggle has been made in Congress and a documented case has been placed before Congress, we ought not to be in the posture of having to go to the President to point out to him how desperate our situation is. But that is what we are going to do at 3 o'clock today.

Senator ERVIN. The Secretary points out one fundamental difference between the President and the Congress. The President, of course, can act with one mind and Congress has 535 different minds. It is hard to develop a consensus in the Congress. I have noticed that often I cannot get Congress to accept the sound views I have retained on a particular question.

Mayor ALIOTO. They are stubborn.

Senator ERVIN. And I think perhaps the Constitution intended it this way, that we have all the views of the people expressed in Congress.

Do any of you gentlemen have questions of either of these witnesses?

Mr. EDMISTEN. We will start off with Professor Stolz.

Professor STOLZ. Mayor Alioto, I was interested in your saying that you were engaged in activities to unfreeze $21 million for urban renewal. I wondered whether you considered the possibility of bringing a lawsuit and if so, what, if anything, are you going to do about it?

Mayor ALIOTO. Since I am a lawyer, I have indeed considered the possibility of a lawsuit. As a matter of fact, I have made inquiries as to whether or not we could not get one of the States to bring the action so that we might get immediately into the Supreme Court. But obviously if our situation continues to be desperate, and I am sure it will continue to be desperate, we have thought of the possibility of doing exactly what was done in Pennsylvania-namely, of filing a lawsuit in which we attempt to point out that the freezing of the funds is violative of the Constitution.

Professor STOLZ. I was wondering whether you think, assuming that such a law suit would be brought, it is likely to be very useful. One of the things I am concerned about is the time lag that is almost inevitable in such a law suit, and the appropriations will have lapsed long before you could get a judgment, I would suppose.

Mayor ALIOTO. That is true, but the courts on occasion, when the necessity for speed is sufficiently demonstrated, have indicated a disposition to move more quickly by way of injunction; mandatory, obligatory injunction. So we have considered the law suit.

We know the problems about a law suit and that is why we are making the concerted effort this afternoon, when 15 mayors of the largest cities of this country are going to tell the President how dire the results could be of the policies he is pursuing with respect to this holdback.

Incidentally, I do not think the holdback, for example, has the sympathy of Secretary Romney, who knows the problem very intimately. We know the problems of the law suit. This is why we are taking the present course. But if everything else is a loss, I think we ought to bring the law suit to establish the principles for the future.

Professor STOLZ. I hesitate to ask the former Secretary, but do you think judges have any business interfering in these problems? Mr. UDALL. What would have? I did not hear.

Professor STOLZ. Judges. In other words, do you think the possibility of a law suit is going to be productive?

Mr. UDALL. It raises questions in my mind. That is the reason I was trying to intimate in my statement. I think the best way to resolve this problem would be if Congress really got tough and put the President in a whipsaw. I think it could do so and I am somewhat disappointed, and I am criticizing leaders of my own party, that this is not done right now on behalf of the cause, for example, that the mayor espouses here. I think Congress has been too timid. I think that it has been too lenient on issues of this kind.

My views are tempered a little bit. I happen to think the President ought to have an item veto, to be candid with you. And I think in times like these, we need a strong presidency. And although I approve of Brown v. Board of Education and Baker v. Carr and many of the recent Supreme Court decisions, I wonder whether this is really not the political thicket getting between the Congress and the White House that Justice Frankfurter talked about. I leave it to you learned gentlemen here your opinions are probably more valuable than mine-as to whether it would be fruitful to go to the court on an issue of this kind.

Professor WINTER. Mayor, is it not clear that if Congress were to direct the President to unfreeze these funds, he would do so. That much is clear, is it not?

Mayor ALIOTO. I would think so.

Professor WINTER. The administration does not take the position. that in the face of a direct command from Congress not to impound, not to freeze, that it need not spend the funds involved. So that there is a remedy that is available in the Congress.

Mayor ALIOTO. That is so, but there are practical limits to that remedy. Those of us who know what it takes to finally get the majority of the Congress to act with respect to a specific case, how long the process and how hard the work, think we ought not to be forced to the necessity of having to do it all over again in terms of the reminder to the President that you really meant to say what you actually said.

Professor BICKEL. I was interested in Mr. Udall's formulation of the issue by way of conceding that what is going on is fairly obviously an extra-constitutional practice, but emphasizing on the other hand that the problem that the President is trying to meet by extraconstitutional means, which I would agree and it seems to be the consensus are intolerable, is a problem that does exist. Congress puts

together in the course of a year a whole batch of appropriations without, for the most part, indicating priorities. The fiscal year goes along, the economy finds itself in this or the other state where a judgment is at least tolerably sensible that spending ought to be cut and that is a matter of policy. You cannot come back to Congress as things are now arranged to have that done. Somebody has to do it; somebody may think it is his duty to do it. If it is to be done, you are led into the priorities problem. You are led to ask, well, what should I cut? If Congress has given no indication, if it has not tagged these appropriations as No. 1, 2, 3, 5, and 10, no indication of that, then the President is at liberty to decide as a matter of policy that he would rather have San Francisco go without certain funds than to have-which is his judgment-inflation more rapid than it is now.

One may disagree with the judgment, but it does seem to me one does have to recognize the problem and that the system as it is now organized offers no very good structure for that decision to be made. It may be, as I think the administration itself apparently recognizes, judging by some opinions that the Justice Department rendered, that some appropriations do carry a priority tag when they are clearly mandatory and it may be, Mr. Mayor-I do not have the facts before me-it may be that the one you are talking about, certainly the legislative history would indicate that, is such a mandatory appropriation and when the President fails to spend that money, it seems to me one can say flatly that he is doing something unconstitutional.

On the other hand, there are other appropriations that do not carry their own priorities on their own face. In that event, unless Congress works up some machinery for indicating its own judgment on priorities, I would feel, as I gather you, Mr. Secretary, in some measure, feel that the country would be ill served if there was no place at all, nowhere, no authority in anyone, to make such judgment.

So I think we are in the presence of a real problem which we ought to address as one that demands solution by newly thought through constitutional ways rather than being left to solution by extra and in many instances unconstitutional ways.

Mr. UDALL. Well, I think you put your finger on one point. That is that there may be distinguishable differences and that if the Congress or some other government entities decide to go to court to try to get constitutional precedent set, they cught to pick the strongest possible case. I could have made a list of my own complaints with regard to my own department and the things that I thought were important at the onset of Vietnam, when funds were impounded. Nevertheless, it seems to me right now, we are talking essentially about the appropriations committees of Congress that are in a way the most powerful committees. If they really decided that they thought these funds were important, I think they could jar them loose in a matter of a few days, or at most a month. This would require them doing something they have never done before, however, and they are creatures of habit and they are headed by the elders of Congress. The oldest men run the committees, and they are all fragmented into little subcommittees, each of which is a little ducky all its own. So there is no mind in these committees that says, you know, this is an