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Appropriations Commitee in support of an appropriation of $175,000 for preconstruction planning on the Four Mile Run project in fiscal 1971. .

I was elated when the Appropriations Committee included the funds I had requested in the bill reported to the Senate. The House accepted the Senate amendment, and the bill was signed by the President on October 7, 1970.

News accounts of the President's action made reference to the possibility that some of the funds in the bill would be impounded, so in a letter dated October 9, 1970, to Mr. George P. Schultz, Director of the Office of Management and Budget, I expressed the hope that funds for the project would be released for expenditure, and that the money would not be placed in a budgetary reserve status. On the same date I asked the Corps of Engineers to begin the work as expeditiously as possible, and to advise me if the money was placed in budgetary reserve.

The Office of Management and Budget advised in a letter dated November 17, 1970, that no decision had been made regarding the $175,000 added by Congress. I was told that OMB was aware of the problems occasioned by flooding along Four Mile Run, and that my views in support of the project would be given careful consideration.

On November 30, 1970, the Corps of Engineers informed me that the money had been placed in budgetary reserve "without prejudice to the later release of such funds after the President had an opportunity to review the entire fiscal situation for fiscal year 1971, and its relationship to the budget for fiscal year 1972.”

In a letter dated December 2, 1970, I advised the Office of Management and Budget of the information provided by the Corps of Engineers, and expressed the hope that the money appropriated for fiscal 1971 would be released at the earliest possible time. On the same day I advised the Corps of Engineers that it would be reassuring to the citizens of Arlandria if funds for the project were included in the Corps budget request for fiscal 1972.

Unfortunately, no funds were included for Four Mile Run in the administration's budget request for fiscal 1972. I expressed my dismay over the omission in letters dated February 1, 1971, to the Office of Management and Budget and the Corps of Engineers. In my letter to OMB, I asked again that funds appropriated for fiscal 1971 be released for expenditure. I also advised that the urgency of the project had been recognized by Congress, and that delays served only to further endanger life and property in the Arlandria community.

Mr. Schultz responded in a letter dated March 9, 1971, that the $175,000 would not be released until after July 1, 1971. This, of course, is the beginning of fiscal 1972. This news was so disturbing, Mr. Chairman, that in my acknowledgement to Mr. Schultz I expressed the hope that the floods could hereafter be scheduled on a fiscal year basis.

Meanwhile, in a letter dated February 5 to the Corps of Engineers, I requested an estimate of its expenditure capability for the Four Mile Run project for fiscal 1972 on the assumption that the funds for fiscal 1971 would be released. I also asked to be advised whether the Corps of Engineers had included any funds for the project in the fiscal 1972 budget request it submitted to higher authority.

I received the response of the Corps on Tuesday of this week. I was told that the Corps could utilize an additional $300,000 in fiscal 1972 if the $175,000 in budgetary reserve were released next month.

However, if the funds in budgetary reserve are not released until July, 1971—and I have been told the funds would not be released until after that date—then the Corps could use only an additional $100,000 for the Four Mile Run project.

This means, Mr. Chairman, that the people of Arlandria not only have lost the year they thought they had gained through the appropriation of $175,000 in fiscal 1971, they stand to lose more ground in fiscal 1972. I cannot request the Appropriations Committee to recommend funding at the level of $300,000 in fiscal 1972 when the Corps of Engineers says it can utilize only an additional $100,000 for that year.

Of course, there is always the possibility that any additional appropriation for fiscal 1972 will be impounded. The fiscal 1971 money was frozen because it was not a part of the administration's budget request, and as I have related earlier in my testimony, there is no money in the fiscal 1972 budget request for this project. Incidentally, Mr. Chairman, the Corps has advised that information concerning its budget recommendations to the Office of Management and Budget are not permitted to be released. I therefore am unable to advise what priority the Corps of Engineers gave the project.

The total cost of the project is estimated at $16,635,000, of which $9,926,000 is to come from Federal funds. I have been assured by both the city of Alexandria and the county of Arlington that they are prepared to provide their share of the cost.

It seems clear that the authority of Congress to determine priorities has been effectively frustrated in this particular case. The Senate and House Public Works Committees recognized the urgent need for the project when they set a precedent by authorizing construction pursuant to Section 201(a) of the Flood Control Act of 1965. The Congress recognized the need by appropriating the $175,000 recommended by the Senate and House Appropriations Committees.

It is regrettable that the Office of Management and Budget has not adhered to the intent of Congress on this project.

Mr. Chairman, I would emphasize, and I believe Senator Gurney will recall when Section 201(a) of the 1965 statute was invoked for the first time, that there was a clear recognition of the urgent need for this particular project. Yet this priority, which has been determined by the proper committees of the Congress, has just been thwarted and ignored ever since the appropriation was made.

Senator ERVIN. This Four Mile Run is almost in the shadow of the U.S. Capitol, is it not?

Senator SPONG. Yes, sir, it is just on the other side of the Potomac.

Senator ERVIN. And they have very drastic flooding there in any time of unusual rainfall ?

Senator SPONG. That is true.

Senator ERVIN. And Washington papers have carried, since I have been in the Senate, very poignant descriptions of what has happened to the people and the property in that area it seems to me some 10 times since I have been in the Senate.

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Senator SPONG. That is true and I think there have been many occasions when every office seeker and potential office seeker has rushed over there when the floods were at their worst to be seen telling people what was going to be done for them. I do not blame the people over there for being pretty disgusted by the whole thing.

Senator ERVIN. The Members of Congress were so informed about the matters when you presented this in the nature of an emergency amendment that you had no trouble in getting adopted by both houses of Congress.

Senator Spong. We had the authorization. On the day that Congress got the final report, the Public Works Committee was in session marking up another bill. The committee members were familiar with the project and they immediately authorized it. Within 3 weeks, the House Committee did the same thing. Then the Appropriations Committees acted almost immediately to make funds available to begin this project. I considered that action rather unusual.

Senator Ervin. And the project has been held up but so far as you know, the floods have not.

Senator SPONG. The floods, I am afraid, will continue, Senator Ervin.

Senator ERVIN. And notwithstanding that the Constitution of the United States gives Congress the power of the purse and Congress has acted, these people are denied what I consider to be relief in an emergency situation because the presidential appointee has frozen the funds and in all probability, the President never heard of the matter himself-or, rather, took no action.

Senator SPONG. Well, no action has been taken.

Senator ERVIN. It was taken in the name of the President, because it is not included in the presidential budget.

Senator SPONG. The chairman is absolutely correct. The will of the Congress has been ignored, but more than that, the determination of priorities in the legislative process has been thwarted.

Senator ERVIN. Is it not true that if such action becomes habitual and funds appropriated by Congress are frozen by the executive branch of the Government, merely because they were not recommended for expenditure in the presidential budget, the powers of Congress under the Constitution will be thwarted and assumed by the President and the power of the purse, instead of belonging to the Congress, will belong to the President?

Senator SPONG. I think that is correct, and I think the effect of what I have related to the subcommittee this morning sustains that.

Senator ERVIN. Senator Gurney, do you have any questions?

Senator GURNEY. Well, first of all, I want to commend our colleague on his fine statement and also to back him up on what he says about this particular project. I was serving on the Public Works Committee at that time and it is true that this was an emergency situation; the committee approved it as rapidly as any project, certainly, that came before it while I was there and did consider is as a matter of urgency.

There are a couple of things I would like to ask, Senator Spong. In your statement on the last page, you mention that the Corps has advised that information concerning its budget recommendations to the Office of Management and Budget are not permitted to be re

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leased. Is that the Corps not permitting the release or the Office of Management and Budget not permitting the release?

Senator SPONG. I believe it is OMB.

Senator GURNEY. This, I might say, is a practice that I have never been able to understand, the withholding of what I think is public information from Congress. I think we ought to have that information and I would hope perhaps, in the course of our deliberations here, we might suggest that in our subcommittee record. I think the executive branch of the Government does have an obligation to supply pertinent information to the Congress when so requested.

The other question I would be interested in, do you have the appropriation language covering this Four Mile Run matter?

Senator SPONG. I do not have it here, but I can submit it for the record.

Senator GURNEY. I think it would be interesting and useful to the subcommittee.

Senator SPONG. Yes.

Senator GURNEY. Because certainly, we have heard witnesses before that say, well, if Congress really means what it says, they can spell it out in the language. So I think in each instance that we examine here, we ought also to have the appropriation language and maybe when we finish our deliberations, we can make some comments on that, too.

Senator SPONG. I will make that language available for the record.
Senator GURNEY. Thank you, Senator.
Senator SPONG. Thank you, Senator Gurney.
Senator GURNEY. That is all I have.
Senator Ervin. Do you have any questions?
[No response.]
Senator SPONG. Thank you very much.

Senator Ervin. I might say we had some very helpful suggestions made here yesterday as to what Congress can do in passing a general act and provide in effect that no one could impound funds except the President and that when the President impounded funds, he should report to Congress the funds impounded and that Congress should have that message to lie before Congress for a limited period of time to give Congress an opportunity to veto his impoundment. It seems to me this would be an efficient manner in which to deal with this subject. It would be almost giving the President an item veto which could be overridden by the Congress and would provide a way in which he can adjust these matters so that the will of Congress will be executed without Congress having to resort to political pressure on the President and the President having to exercise political pressure on the Congress. It would be more seemly than our present situation.

Senator SPONG. I believe that would be a great improvement on the present situation.

Senator ERVIN. I think you have a situation there that is so critical that I would suggest that you introduce another amendment and provide that it shall be the mandatory duty of the executive branch of the Government to see that this money is expended for the purpose of accomplishing the congressional objective. I think that you would get more response from the executive branch of the Government than we are getting at the present moment. We have indications here that there is approximately $12 billion being impounded. If it were done to save money, that would be one thing. The administration has recommended that we go back to fiscal irresponsibility in the form of deficit financing under another name of a full employment budget, I think that deficit financing is like the jimson weed. It smells just as bad under another name as it does under its true name..

Thank you very much.
Senator SPONG. Thank you, Mr. Chairman.

Mr. EDMISTEN. Mr. Chairman, our next witness is the Honorable William Rehnquist, Assistant Attorney General, Office of Legal Counsel, Department of Justice. As you know, Mr. Rehnquist has appeared before this subcommittee before.

Senator ERVIN. I want to welcome you to this subcommittee and express our appreciation for your willingness to help us. I hope that we can bring some light out of this very chaotic state which has gone on for some time I do not mean in the present administration only but in previous administrations, as well.

STATEMENT OF WILLIAM H. REHNQUIST, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE

Mr. REHNQUIST. Thank you, Mr. Chairman. I do not know how much light I can contribute, but I will certainly try.

Since Mr. Weinberger testified yesterday and did make a formal written statement to the subcommittee, I thought that perhaps I could best be of help by just commenting informally for 5 or 10 minutes and then submitting myself to questions because I suspect the subcommittee has rehashed most of the ground there is on this subject and that nothing much that I would say now would be particularly novel.

In trying to analyze the problems presented by impoundment from the point of view of the Department of Justice, and more particularly the Office of Legal Counsel, we, of course, start out with the constitutional provisions in the Kendall case, decided during the chief justiceship of Taney. From there on, I think you pretty well have to go to the history of the subject and the congressional and executive precedents, there just being no very helpful cases and this not being the kind of subject which you would expect to find treated in cases. Now, that is not to say that there are not cases that may bear peripherally on the matter.

As I understand it, the early appropriations bills passed in the first congresses were quite general in their terms and, by obvious congressional intent, left to the President and the executive branch the responsibility for determining in very large degree in what particular manner the funds would be spent. As we have moved forward in the history of our country, Congress has tended to appropriate more specifically. Perhaps as a result of that, perhaps as a result of other factors, the practice of impoundment, as it is referred to, has grown up.

The first example of it that I could find was in Harding's administration, when funds for a rivers and harbors project were im

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