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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 difficult 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 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.
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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.)
EXECUTIVE IMPOUNDMENT OF APPROPRIATED FUNDS
THURSDAY, MARCH 25, 1971
Washington, D.C. The subcommittee met, pursuant to recess, at 10:15 a.m., in room 2228, New Senate Office Building, Senator Sam J. Ervin, Jr. (chairman of the subcommittee) presiding.
Present: Senators Ervin, Mathias, and Gurney.
Also present: Rufus L. Edmisten, chief counsel and staff director; Joel M. Abramson, minority counsel; Prof. Ralph K. Winter, Jr., Yale University Law School, consultant; Prof. Alexander M. Bickel, Yale University Law School and the Center for Advanced Study in the Behavioral Sciences, Stanford, Calif., consultant; Prof. Preble Stolz, University of California School of Law, Berkeley, Calif., visiting professor of law, Yale University; Prof. Loch K. Johnson, University of North Carolina; and Prof. Arthur S. Miller, the George Washington University National Law Center, consultant.
Senator ERVIN. The subcommittee will come to order. Counsel will call the first witness.
Mr. EDMISTEN. Senator, we are very honored this morning to have the distinguished junior Senator from Virginia, William B. Spong, Jr.
Senator ERVIN. We are delighted to have you with us this morning and pleased that you would come and represent your State.
STATEMENT OF HON. WILLIAM B. SPONG, JR., A U.S.
SENATOR FROM THE STATE OF VIRGINIA Senator SPONG. Thank you, Mr. Chairman. I have some hesitancy about bringing parochial matters into these hearings, but I believe that the information that I have to give to this subcommittee will be of some help to you in your deliberations.
It is a privilege to appear before you and the Judiciary Subcommittee on Separation of Powers. Your hearings on the Presidential impoundment of appropriated funds are especially relevant to the citizens of the Arlandria community of Northern Virginia.
They have been directly affected by the freezing of $175,000 appropriated in fiscal 1971 for preconstruction planning on a flood control project at Four Mile Run. They don't understand how or why this could happen when there is unanimous agreement that the project is urgently needed and should be built. In my judgment, Mr.
Chairman, this is a classic example of why citizens come to believe that government is unresponsive to their needs.
Mr. Chairman, it would be helpful to the subcommittee's understanding of the situation if I briefly reviewed the history of the flooding, and of my efforts to expedite congressional action on the authorization and appropriations.
The modern history of damaging floods begins in the early 1940's. The first evidence of property damage occurred in about 1942. It was confined mostly to streets, although there was some minor basement flooding.
Representatives of the U.S. Corps of Engineers testified before the Senate Public Works Subcommittee on Rivers and Harbors in September, 1969, that there had been five major floods since 1963. On the basis of 1969 prices, the Corps estimated damage from the five floods at $8,140,000. The most severe of these occurred on July 22, 1969, when approximately 520 dwelling units and 78 places of business were inundated. The Corps estimated damage from that flood at $4,315,000. Eleven days later another flood caused damage estimated at $700,000.
The alarming thing, Mr. Chairman, is that the frequency and severity of the floods is steadily increasing, even though there has been an almost complete prohibition against construction in the Arlandria area since 1964.
There have been six flood watches in the Arlandria community since the 1969 floods. In a flood watch, police and fire units are sent into the area. They use lights, sirens, and loudspeakers to warn the people that the water is rising and that they may have to evacuate their homes.
Four of the six developed into actual evacuations involving up to 50 persons. Officials of the city of Alexandria informed my office late yesterday that the period of evacuation on these four occasions has varied from 1 to 2 hours. The most recent flood watch occurred on February 13 of this year.
As far as I have been able to determine, there has been only one fatality directly caused by flooding. That occurred in 1963. However, the Corps of Engineers observes at several places in its report on the project that additional fatalities could have occurred had floods come during the night.
Frankly, at the time of the 1969 hearings I didn't realize how much time would be required to complete the procedural steps involved in projects of this kind. It wasn't until June 25, 1970, that the project report was formally transmitted to Congress.
That very day, the Senate Public Works Committee, at my request, authorized the project pursuant to the provisions of Section 201 (a) of the Flood Control Act of 1965. Section 201 permits the Senate and House Public Works Committees to authorize flood control projects having a Federal cost of less than $10 million. Nineteen days later the House Committee adopted a similar resolution.
I might add, Mr. Chairman, and I think this is significant to your hearings, that this was the first project ever to be authorized under the 1965 statute.
Anticipating favorable action on the authorization, I testified on May 18, 1970, before the Public Works Subcommittee of the Senate