2. Site. The location of the Fisheries Center is on Golf Course F in East Potomac Park. Site approved by Secretary of the Interior, Commission of Fine Arts, National Capital Planning Commission, Federal City Council, and the Subcommittee on Interior and Related Agencies of the House and Senate Committees on Appropriations.

5. Status of designs. Plans and specifications were completed in March 1969. The concept and preliminary and final designs were approved by the Commission of Fine Arts and the National Capital Planning Commission. Design is complete and all necessary design and site approvals have been obtained. Plans and specifications were ready for issuing to bidders in 1969. Of the amount appropriated for construction, $9,100,000 has been placed in budgetary reserve by the Office of Management and Budget and is therefore unavailable for use.

Mr. EDMISTEN. Mr. Chairman, our next witness and I have already apologized for the delay-is Mr. Karl S. Landstrom, Colonel, U.S. Army, retired; former Director of the Bureau of Land Management and formerly Assistant to the Secretary for Land Utilization, Department of the Interior.

Senator ERVIN. Colonel, I am obliged to welcome you to the subcommittee, and I wish to express our appreciation for your willingness to appear and to assist us in this very important study.

STATEMENT OF KARL S. LANDSTROM, COLONEL, AUS RETIRED; FORMERLY DIRECTOR OF THE BUREAU OF LAND MANAGEMENT; AND FORMERLY ASSISTANT TO THE SECRETARY FOR LAND UTILIZATION, DEPARTMENT OF INTERIOR

Mr. LANDSTROM. Thank you, Mr. Chairman. I may say I am very pleased by the quality of talent you have amassed for these hearings. I think it is very worthwhile. I hope I can make a slight contribution to your inquiry.

With your permission, I would like to not read the first several introductory paragraphs of my statement.

Senator ERVIN. That will be all right. You can take your own course in making your own presentation, but the subcommittee will have your entire statement printed in the record at the conclusion of your remarks.

Mr. LANDSTROM. Thank you.

With all respect to you, Mr. Chairman, I shall begin by criticizing your own opening statement. Your statement reads in part as follows: Impoundment unfortunately occurs under circumstances when the Executive Branch, for reasons of its own, wishes to avoid expending sums which the Congress has explicitly directed to be spent for some particular purpose. It is this situation which poses a threat to our system of government and which so patently violates the separation of powers principle.

Taking your statement literally, and I see no reason to do otherwise, it would appear that you hold that in most or all situations involving projects or programs which have been authorized by statute, for which the appropriation of funds has been authorized by statute, and for which funds have been appropriated by statute, the Congress "has explicitly directed" that the funds be spent. This is not my understanding. It certainly is not the case in the bulk of statutes which govern the programs with which I am familiar. In almost all instances, the authorizing statutes used a term such as "the Secretary is authorized to," or "the Secretary, in his discretion, may." And the appropriation statutes follow the traditional language, which reads about as follows:

Be it enacted by the Senate and the House of Representatives, in Congress assembled, That the following sums are appropriated, for the Department of *** and related agencies, for the fiscal year ending *** and for other purposes, namely: * * *.

Et cetera.

The terms "directs" or "is hereby directed" or similar mandatory language do not appear in the traditional appropriations act language. Consequently, my impression is that the Congress has not ordinarily "directed" that the funds be spent. It rather has "authorized" that the work be accomplished, and "appropriated" funds from which the expenses may be paid, if and as the work proceeds. There are exceptions from this ordinary situation, of course, as in the case of so-called self-operating statutes, in which unilateral offers are extended to private parties who, upon qualifying under them, have a contractual right to be reimbursed by the Government.

Let us look for a moment at the situation complained of yesterday by Mayor Alioto of San Francisco. I sympathize with the mayor's disappointment under the situation he described, but I doubt if his analysis of the legal aspects can be properly supported.

Note that the mayor said approximately that the Congress, after extensive hearings, had "decided" that certain urban renewal and public housing funds shall be spent. He reported that the funds had not been released, and alleged that such nonexpenditure of appropriated funds raises "a grave constitutional question."

One would think, again taking the testimony literally, that the Congress had taken some legally binding means by which its so-called decision had been impressed within the law of the land. The fact is, however, that the urban renewal statute is not couched in mandatory terms, but rather in the following language: In regard to local community loans, the statute reads: "The Secretary may make temporary and definitive loans***." (42 U.S.C. 1452(a)). In regard to urban renewal grants, the statute reads:

"The Secretary of Housing and Urban Development is authorized to make grants * **"" (42 U.S.C. 1452a (a)). And although the statute contains certain appropriation authorization ceilings and

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.