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. Mr. LANDSTROM. Two responses: the short one is: How would you enforce it? How would you get the President and the Court to enforce it? Professor BICKEL. How do you enforce it? Because the President, if it were put into law, would obey it. Mr. LANDSTROM. You know the Supreme Court has held that the Presidency is not subject to court action. Professor BICKEL. But it is subject to the law. Mr. LANDSTROM. That is your first real problem on the constitutional question: How will you enforce it? Of course, that is a diffi cult drawback. Professor BICKEL. The President and Congress both agree that this is a government, not under men but under God and under law. Professor MILLER. Let us answer that by the Steel Seizure case. They enforced it against the Secretary of Commerce. Mr. LANDSTROM. The Secretary of Commerce is not the President. Professor BICKEL. He is proxy for the President. Mr. LANDSTROM. The other response would be: Why not do more of this or some of this in the substantive legislation? It seems to me that is much more significant than the appropriations legislation. When the Congress decides it wishes to authorize a project, let it consider, I would suggest, whether it wants to direct also that it be done. And also, how fast it shall be done, and have as many of these questions settled in the authorizing stage as possible. Now, if it, in your line of reasoning, would stick that the authorizing legislation would require this to be built on time, there is no question, as I see it, any question of impoundment of funds. The impoundment of funds comes about because the President or the Secretary has to pay the obligation being carried under the substantive legislation. I think this would narrow it a great deal. Professor BICKEL. That is a powerful point which I found extremely persuasive yesterday, and I have since come to see it in a somewhat different light for this reason, pointed out, among others, by Professor Maass this afternoon: That the judgment that is really required is an aggregate judgment, and that Congress is nowhere structured when it passes this appropriation or that authorization. to make an aggregate judgment, let alone to make one that can foresee conditions a year ahead. The President is in a position to see the whole picture. Therefore, the trick is not, as I say it is a powerful point which I started out with myself. Therefore, the trick is not to get Congress to flag things; maybe some of that can go on, too. But, in general the answer is not to get Congress to flag things with high priorities when it passes them, because it is apt to flag too many, and the trick is to reintroduce Congress into the process of looking at the aggregate picture afterwards, after events have had their say about the aggregate picture. And that, of course, would not be done just by flagging it. Thank you very much. Professor STOLZ. If I may interrupt, why is it not sufficient that the question is going to be in the next year's budget? It is before the Congress in the following year. Professor BICKEL. There are several answers to that. Among them is with the many projects, what happens by the following, to expect, if you let the President stop something and you then expect Congress of its own initiative-the President did not put it back in his budgetyou expect Congress by its own initiative in the next appropriation go-around to put that in; you are in effect, asking Congress to legislate by something like a two-thirds vote. You are, instituting, at the very least, the veto which can be overridden only by a twothirds vote. It takes enormously more intensity. Poor Mr. Bennett was arguing that yesterday. Sure, he said: I can come back next year and put the Florida Canal back in again, but Congress last year-Congress next year will be different than it was two years ago. I got a law once; I made it law once; over that law, some other judgment prevailed and Congress should be given a chance to have a part of that other judgment. It is no answer to say you can make that a law next time. Professor STOLZ. It is an answer, because he is going to have to come back to Congress anyway, even though the Cross-Florida Barge Canal appropriation had been set, he is going to have to come back for an additional appropriation for the following year. Professor BICKEL. But it is not a going operation. Professor BICKEL. And it has now been stopped. Professor STOLZ. It was a going operation before it was stopped. Professor STOLZ. The only effect of the President's decision was to stop it a little bit sooner. Professor BICKEL. Now he has the burden of cranking it up again. Besides that, it may be a partial answer, but even to the extent that it is a partial answer, it should not keep me from working out an answer that is not partial but complete and, conceivably, a better one. Mr. LANDSTROM. May I, Mr. Chairman, make one more response to that? I am also a proponent of a self-starting Congress, not dependent upon the President having to initiate a situation. I am all for the services in GAO in scouting out these problems. I am all for building up the committees of the Congress, including its staff. I worked on the House staff of the House Committee on Interior and Insular Affairs for several years. I understand the problems of a committee staff. I mean by "self-starting," let us look to the Congress itself and its own institutions to be ahead of this, introduce the legislation and have committee hearings and act upon it without the services of the President to rely upon. Professor MILLER. I have no questions. Senator ERVIN. I understood you to say Congress could phrase its laws in such a way as to make its appropriations acts mandatory, and then the President would have to carry them out. Mr. LANDSTROM. As I say in my paper, I think that ought to be tried to a greater extent than at present. I gave in my paper a couple of examples where it is not working too well. But I think very precise language to this effect would pay off. It is worth a trial. Senator ERVIN. Of course, it is within the power of Congress to appropriate funds. I do not think we can question that. And it is also the duty of the President that he takes an oath to perform this duty to see that the laws are faithfully executed. Mr. LANDSTROM. Yes, sir. Senator ERVIN. And of course, if the Appropriations Act vests the discretion in the President to hold funds or spend them, why, he obeys that law by exercising that discretion. Mr. LANDSTROM. That is exactly my testimony; yes, sir. Senator ERVIN. But when the Congress makes it mandatory for him to spend money for a purpose that Congress thinks has a high priority or is in the national interest, I think it is the duty of the President to expend that money regardless of whether or not he thinks it wise. I do not understand you to disagree with that if the act is phrased in such a way as to make it the mandatory duty of the President to carry out the project. Mr. LANDSTROM. Well, sir, I frankly think that is a better course for the Congress to follow now than something more extreme, such as Professor Maass has suggested; yes, sir. Senator ERVIN. Well, that is the reason I think Professor Maass's suggestion might have some appeal. It establishes a definite procedure and makes for orderly relationships between the President and the Congress. I think it does not promote good relations between the Executive and the Congress for the Congress to make an appropriation and to indicate that it should be made effective and then for the President to refuse to carry out that particular act of Congress. As I see it, the President has an obligation to carry out all acts of Congress, whether he likes them or whether he dislikes them. If Congress makes it mandatory fo rhim to make an expenditure of appropriated funds to accomplish a certain purpose, the President has no more right to disobey that law than he has to say: "I will not enforce the laws against crime." Mr. LANDSTROM. Yes, sir; I agree with that. I think it does call for a very high art of legislative draftsmanship to anticipate difficult situations, particularly those that involve unknowns, such as forces of nature, forces that come upon us from foreign powers, changes in technology and changes of this kind. It would be a difficult job to expand the Antideficiency Act properly, have it properly interpreted, and have it stand up in court, but perhaps it can be done. Senator ERVIN. I certainly agree with you that Congress could very well improve its language to a remarkable degree. As a legislator who likes to see legislative language explicit, I would favor that. I do not know if I were practicing law, if I would say it, because one of the great sources of litigation arises out of the fact that Congress and other legislative bodies use language which makes it hard to tell what the intentions are. Mr. LANDSTROM. Thank you. Senator ERVIN. Thank you very much, Colonel. The committee will stand in recess until 10 tomorrow. (Whereupon, at 5:20 p.m. the hearing was recessed to be resumed at 10 a.m. the following morning.) |