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other kinds of substantive limitations, I could find nothing in the text that expressed any kind of a directive to proceed at any particular rate or schedule.
I assume that the current appropriation act for the Department of Housing and Urban Development follows the traditional appropriations act language. If so, then I know of nothing that the Congress has expressed within the law that would bear out either your statement, Mr. Chairman, that the Congress has explicitly directed the money be spent, or Mayor Alioto's statement that the Congress has "decided” that the money shall be spent here and now.
Referring again to your statement, Mr. Chairman, I do not concur, for these reasons, with your conclusion that “this situation * * * patently violates the separation of powers principle." As a matter of fact, my conclusion at this time is the opposite. It would seem to me to amount to a patent violation of the separation of powers principle of the President should fail to exercise the discretion and judgment granted to him, not only by the Constitution, but also by the express language of the substantive authorizing legislation, in deciding, or supervising the decisions of subordinates, in relation to the rate or schedule at which authorized work shall be accomplished, obligations shall be incurred, and appropriated funds shall be expended within the operations of the executive branch, merely on the strength of a series of assertions by Members of Congress or others that statutory authorizations which are not couched in mandatory terms must be construed as though they were mandatory.
For these reasons, I do not concur with testimony of my former colleague, Stewart L. Udall, given yesterday that such withholding of appropriated funds below expenditure at a full rate is a usurpation. As a matter of fact, I felt that Mr. Udall equivocated on this point at a later stage of the roundtable discussion when he appeared to endorse the recent withholding of executive authorization to proceed with the Cross-Florida Barge Canal. Mr. Udall's net contribution, as I understand it, was to suggest that Members of Congress should be advised to bring pressure on the President either to impound appropriated funds, or not to impound appropriated funds, depending upon their current judgment as to the wisdom of either. And with that suggestion, in view of what I have otherwise said thus far, I am in agreement, provided the pressure is applied in a way that corresponds with the courtesy these two great branches owe to each other.
If a Member of Congress should not be satisfied with such procedure, and happens to be convinced that a legal remedy exists against the executive branch, the courteous course, I think, would be to arrange for a civil action, rather than to issue press releases claiming “violation" of the law as though the issue had already been resolved by judicial process. And if he should go far enough, he likely will find out whether the Presidency is subject to being enjoined by the courts to carry out a forced-draft rate of work and expenditure which is out of line with the judgment and discretion of the Chief Executive.
Frankly, in my experience, Mr. Chairman, I was more perturbed by impoundments of appropriated funds brought about by invalid directives of the Senate Appropriations Committee, than I was by executive branch impoundments. Let me cite two examples.
First I take as an example the use by the Appropriations Committee of the device of placing a directive, using the words "the committee directs” in its report to the Senate upon a pending appropriation bill in order to accomplish, if possible, a mandatory directive upon the executive branch without allowing the Congress as a whole, not even in the Senate as a whole, to take legislative consideration, thus usurping the power of the Congress under the constitution. I have explained the details in my statement.
I give a second example, beginning about 1967, which I think is still continuing within the ambit of the Wilderness Act of 1964, which contains mandatory language which directs the Secretary of the Interior and the President to take certain actions within a certain time and report to Congress thereupon.
In my judgment, this is being partly thwarted by a similar insertion by the Senate Appropriations Committee in its report on the Department of the Interior Appropriations bills, which has the practical effect of eliminating from the reviews being made by the Secretary of the Interior any mineral resource investigations by the Geological Survey as the Department at the time interpreted the mandatory provisions of the Wilderness Act to require.
The interesting feature, I think, of this second illustration is the fact that the Chairman of the House Interior and Insular Affairs Committee, which originated the mandatory language referred to in the Wilderness Act, had written a letter to the Secretary of the Interior requesting in most clear terms that these same mineral investigations be made by the Geological Survey as part of the Wilderness Act survey. From this, we can see an illustration of a case in which various components of the Congress, whether it be individual members of the committees of Congress or the Houses themselves, can be at odds over their desires either to have work performed or not performed or funds spent or not spent all at the same time.
From what I have said, it might be interpreted that I have implied that an appropriate course for the Congress to follow, as it may wish to establish minimum progress rates under authorized projects or programs using authorized appropriations, would be to place mandatory language to such effect in the statutory enactments. I believe that more of this could well be tried, although I have observed the failure of such provisions in some instances, such as in the Wilderness Act.
I would like to add there, by way of explanation, that the Wilderness Act at one place has a provision saying that the President shall report to the Congress on the progress under the Wilderness Act at the opening of each session of Congress. I happened to work on this type of report for several years running. To my knowledge, this has never been complied with at the time provided by the statute.
Such provisions, of course, run counter to the basic rule that the Presidency, except for its ministerial obligations, is exempt from judicial process.
Not recognizing that any so-called grave constitutional crisis exists, and not recognizing that there has been any marked degree of so-called usurpation, I have no drastic remedial measures to suggest. Instead, I suggest great care in the drafting of appropriate language in the legislative enactments, particular attention thereafter to reading and construing such language as problems may arise, and above all a determination in both great branches to cooperate across the uncertain border that separates their respective powers.
If I may be permitted, Mr. Chairman, one more brief comment on the alternatives suggested today by Professor Maass, which I listened to today with a great deal of interest. From my analysis of the situation, the problem involved in not merely the impoundment of funds under an Appropriation Act authorization, but also the continuance, rather, of work under the substantive authorizing legislation. I think the difficulty, or the lack of comprehensiveness of Professor Maass's suggestion is that it would be impossible to spend money unless there have been obligations incurred, and unless work proceeds; there are no obligations to be paid off.
So, not only would Professor Maass have to, in his plan, call for a review of a proposed impoundment of funds, he would also have to call for a congressional review of any proposal to stop any work. And I suggest offhand that this would be highly impractical, except for a very few large major items.
Thank you, Mr. Chairman, for this opportunity to contribute. Professor JOHNSON. Do you know of any funds that have been impounded, despite mandatory language?
Mr. LANDSTROM. Well, it depends, I think, on the meaning of terms as brought out in the discussion earlier. What is an impoundment? If you mean a ceiling on the hiring of personnel; yes, we have those all the time in my experience. That is a kind of impoundment, although it comes about, not from impounding funds, but by not hiring personnel; therefore, they do not have to be paid. If you call that an impoundment; yes, that has been customary for many years.
Professor JOHNSON. Are you aware of any major programs that have been eliminated despite a mandatory statute? Not just effecting savings but abolishing a program altogether?
Mr. LANDSTROM. I can think of no program that I would call major that has been totally eliminated.
Professor STOLZ. I was interested in your comments about Professor Maass's testimony and his proposal for some sort of notification of what he called impoundments. I gather you share my skepticism that it is possible to define impoundment in such as way as to make that a really useful device.
Mr. LANDSTROM. Yes, I do, without going the whole way and virtually taking over direct control through Congressional channels of nearly every Executive operation.
Now, I have often thought: Let us say if worse were to come to worse and there would be a total breakdown of relations between the two branches, whether the Constitution allows the Congress to invent its own organization and spend directly or supervise directly this work. But I think you are approaching something of that kind as an extreme answer. I do not think it is a viable answer. I think the answer is greater cooperation and understanding and greater attention to details.
I think the semantics are very important here, even in the testimony and in the statements currently being issued.
General some my impresskind of recorde
Professor STOLZ. I can completely agree with that without any difficulty whatever.
One other suggestion was made that it might be useful to have the Comptroller General somehow or other notify the Congress or play a role. Am I correct in my impression that the Comptroller General really does not have access to the kind of record that would bring to light impoundments until after, really, the event? Am I wrong about that?
Mr. LANDSTROM. My impression: You would be wrong, because I have observed accountants from the Comptroller General's office many times. In fact, in the Department of the Interior building, they have a permanent office.
Professor Stolz. Do they get the apportionment document, which is where I gather
Mr. LANDSTROM. I have never heard of anyone denied access to any documents.
Professor Stolz. I do not mean are they denied access, but do they routinely receive copies and go over those ?
Mr. LANDSTROM. I think they do, especially when the need arises or when directed to. But I think if you would ask the GAO habitually at all times to do this job, you would have to increase their manpower very considerably.
Professor STOLZ. I have nothing more.
Professor BICKEL. Colonel, I wonder if the problem is really as insoluble as all that, or whether the legal position as of the moment does not already approach a solution, although it is not in conformance with the practice. I am thinking of the Anti-deficiency Act which, subject to the frailties of language—my goodness, we face those all the time—does, I think, carry out the congressional power which I gather you concede to exist to tell the Executive when and how much to impound. It may be the consensus, after hearings like this, that that is not enough, that the Anti-deficiency Act allows very little play, perhaps. But you would be very wary of jumping to the conclusion that one cannot write something; one cannot have a system that tells the Executive when he can impound, as the Anti-deficiency Act now tells him, without having to report to Congress, and it tells him for the rest, rather simply, when you are doing something else not establishing reserves, not dealing with changed conditions or fighting inflation, but fighting inflation or expressing your own view of the priorities, as compared with that of Congress—when you are doing that or something else, then you come under the Maass procedure or something like that and you would have to report and it has to lie on the table. I do not think any of us would that readily jump to the conclusion that that cannot be written. The question is: Would you think it advisable, assuming with me for the moment that it can be written, to build a structure like that so as to make good neighbors in the fashion in which good neighbors are usually made; namely: by having good strong fences between them which both of them understand?
Mr. LANDSTROM. I think what you say has a good deal of truth, except I think it is only true from the viewpoint of the accountant on the financial side. I wonder how you would relate this to the sub
stantive legislation's side of things. There are, of course, as you pointed out earlier today, things beyond the control of either the Congress or the Executive that happen, not just the balancing of the budget, not just wars or rumors of wars, but changes of science and technology, changes of public opinion, even in one fiscal year. I happen to be a proponent of doing away with the annual appropriation and going with biennial appropriation or even longer, as far as that is concerned.
But I think one conflict, at least, that would arise if the substantive legislation clearly grants discretion either to the President or to the Secretary, as most of these do. It is a grant of legislative discretionthat is a technical term for it in the textbooks. Congress has granted its legislative discretion to the President or to the Secretary by the very terms of the statute that authorizes the program. Very many of these statutes even have the word “discretion" written in them. That is the kind I am mostly familiar with.
Now, then, if you have a procedure from an accounting or financial viewpoint calling for a forced draft expenditure, you are repealing by implication the terms of the authorizing legislation which grants administrative discretion as to the rate and location of the elements of the plan. So I think you would have a conflict of directives. It might be a question as to which law was enacted most recently or which one would prevail.
Professor BICKEL. But suppose we arrange a system more or less schematically like this that said, starting with the terms of the Antideficiency Act, under any appropriation, when the good management factors, good management considerations are in play, like establishing contingency reserves, being able to do it for less than a good program, or spacing it differently, or spending it at different rates because that seems good management, full executive discretion.
Second, again following the Antideficiency Act, if there are changed conditions not changed world conditions, but changed conditions relevant to that project. We told you to build a bridge and the river is not there any more; we told you to build a building and construction costs have doubled in the time. Again, you can establish a reserve; you can impound and so on.
Then third: when, for other enlarged considerations, because, if you will, public opinion has changed, because you are now fighting inflation, because a war has suddenly come about, as happened in 1940—when you want to impound, for those and other reasons, other than these you come and put it before Congress and it lies on the table. Agreeing, in other words, fully with you that policy enters into this and that there may be a clash of policy, a clash, if you will, of discretionary exercises by the President.
Agreeing with all of that, why cannot it be arranged or written fairly precisely so the arrangement will be followed so that when those circumstances come about, the President does not act, as for the past couple of decades he has come increasingly to do, act on his own authority. But, however, acts and gives Congress a chance to pass on his action by letting it lie on the table, and you have the Government responding to changed conditions in the way which is best suited to its nature, which is best suited for the assent of the people, namely: the Congress and the President together.