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

pounded. I cannot remember whether it was for a year or-it seems to me it was just put over for a year. The action of President Franklin Roosevelt during the Second World War of impounding funds for basically civilian projects for the duration of the World War is well known and I think is known by most scholars. I think almost every President since that time-Presidents Truman, Eisenhower, Kennedy, Johnson, and Nixon-have engaged in some form of impoundment when they thought it was justified under all the circum

stances.

The question is, When is it justified, when is it permissible to do it? You start with the intent of Congress and I think it is generally conceded that language of authorization in an authorization bill without more is not mandatory. Representative Cannon, who certainly was an authority on that subject, so indicated during the 1963 debates on the defense appropriation.

Then if you go on to the language of appropriation bills without more, I think the general view there is that the language of these bills is only permissive as setting a ceiling and not mandatory standing by itself.

Ramsey Clark, when he was Attorney General, had occasion to consider this general subject in an opinion on the permissibility of impounding Federal highway funds, and after a rather careful analysis along these general lines, concluded that it was consistent with the intent of Congress under the circumstances presented there to impound the funds.

But this, I think, is not the kind of question that presents difficulty. The question is where either Congress is not clear in the intent with which it writes a statute, or in the case where that Congress is crystal clear-take the language that Congressman Vinson from Georgia sought to introduce into the military appropriations bill for fiscal 1963, that the Defense Department, in effect, is directed, mandated and uses all the mandatory words possible. Surely in the latter case there is no question as to what the intent of Congress is. Then the question becomes one of whether, given a mandatory intent on the part of Congress, the Executive has a right to impound.

In the question of trying to find a mandatory intent on the part of Congress, it is not a question of looking for the word "shall" as opposed to "may." Our office, in the memo that was published in the Congressional Record in December 1969, concluded that in providing for certain formula grants for schools-I think it was impacted aid, but I am not sure-Congress had indicated that these were to be spent, not necessarily because it said they shall be spent, but just from taking the overall language of the authorization bill, the enabling statute if there was one in the particular appropriations language. and construing them together to try to find on a reasonable basis what intent Congress manifested.

Well, when it comes to the action of the Executive in these situations, I take it that it is conceded that the President, as I believe Mr. Weinberger suggested yesterday, must consider all the laws in determining whether or not spending is mandated in a particular case. That is not to say that Congress could not pass a law saying notwithstanding the provisions of any other law. I think that is the way that the Arizona Legislature used to draft at least half its laws.

I do not think it is a happy form of draftsmanship, but presumably, Congress could, if it wanted to, exempt from the provisions of all other laws a particular appropriation. I think many would feel that was not a wise action, but there is no doubt of Congress' power to do it. But in the absence of language of that sort, you have the provisions of the Anti-deficiency Act, the provisions of the Debt Ceiling Act, and, conceivably, other laws likewise would be relevant in trying to determine from all the circumstances what was the intent of Congress with respect to this particular piece of appropriations legislation.

If, on the basis of consideration of all the laws, the conclusion is that the intent of Congress was to mandate the spending, then our office has taken the position, in the memorandum I previously referred to, that the President is not at liberty to impound in the case of domestic affairs which have no national defense or foreign policy considerations. This is not the position of the Department of Justice. The Department of Justice, through the Attorney General, has taken no position on the matter and it is not the position of the administration. I think the administration, as such, as an institution, has not taken any position on the matter. But that, nonetheless, was and is the position of our office under the particular circumstances there.

But if one gets into the area of national defense spending, I think from the debates in the fiscal 1963 Military Appropriations Act, it is clear that more than one senator expressed the view that the President had authority in the area of national defense, by virtue of his constitutional standing as Commander in Chief, which might permit him to withhold in that area where he could not have in the strictly domestic area. In fact, I would go further and say that certainly Members of Congress from time to time have taken the view that Congress can't force the President to spend money of any sort. Congressman Laird, before he became Secretary of Defense, and Congressman Flood from Pennsylvania, during debates in Congress in October of 1968, both expressed that view.

So when I say the Office of Legal Counsel has taken the position that the President must spend in the domestic area when it is clearly mandated that he do so. I recognize that there are views to the contrary and that this is not an easy question or one that admits of no argument on the other side.

In the foreign affairs field, also, there is probably an exception, though it is not anything one would want to opine on until he had a problem before him. But given the foreign affairs power of the President and a case like the Curtiss Wright case, which certainly indicates that the President's power in that area is quite different from the domestic field, I think a different conclusion could well be reached.

I think that Thomas Jefferson, when he was President, objected to Congress appropriating money to pay specific salaries to his ambassadors. His view was that Congress, under the doctrine of separation of powers, ought to appropriate a lump sum for the payment of ambassadors and he would decide who got what. That battle was never renewed, so far as I know, and I think it was resolved in favor of congressional specification. But it is some indication of the fact that people right there at the founding of the country, someone like

Jefferson, felt that foreign affairs powers were quite different than the power of the President in domestic affairs.

I think that is probably as much as I can usefully contribute by way of expression of my own observations on the subject. I would be more than happy to try to answer any questions that you have, Mr. Chairman, or other members of the panel or the Senate have.

Senator ERVIN. Is this not a problem that becomes acute on account of two factors? The first is that Congress has to make appropriations in advance, and oftentimes, conditions change from the time the appropriation is made and the time comes for the carrying out of the project.

Mr. REHNQUIST. I think that is correct.

Senator ERVIN. And another thing is that our Constitution does not recognize an item veto and it compels the President to sign an entire bill, including specific appropriations which he thinks are unwise. and Congress has to pass the thing over entirely, over his veto or the veto stands.

Mr. REHNQUIST. Certainly, if he had an item veto power, I suspect impoundment would not be the issue that it is.

Senator ERVIN. As our country becomes more complex, the more items, specific items, we have in each appropriation bill.

Mr. REHNQUIST. No doubt about it.

Senator ERVIN. So we have an appropriation bill that very often may carry hundreds of items and the President may feel that a limited number of the appropriations are unwise for one reason or another and he is confronted with the fact that he has to veto the entire bill or sign the entire bill into law. So impoundment has occurred, I think we all recognize. Certain lawmakers like myself think we ought to have balanced budgets and that Congress ought to have enough-well, I will put it plainly-honesty not to appropriate more money than it needs for the purpose and ought to have enough courage to levy enough taxes to cover the appropriations it makes. But there is a suggestion that was made here yesterday by Professor Maass, which seems to me to provide a way out of this state of uncertainty, which I will mention in a minute. Of course, the Congress has recognized by the Anti-deficiency Act that there are times when it is wise for the President to have and exercise the power of impoundment, is it not?

Mr. REHNQUIST. Yes. Certainly, the act passed in 1951 recognized that.

Senator ERVIN. In other words, that act expressly provides that the President should have the power to set up reserves out of an appropriation for contingencies.

It also provides that the President can impound when and where. for the purpose of effecting savings, a change in requirements would enable the carrying out of the project with an expenditure of less than the amount of the appropriation. And also, that he can impound funds where there has been a change or, rather, new develop ment, since the appropriation was made. So Congress has recognized that it is a part of wisdom under certain circumstances to impound money?

Mr. REHNQUIST. Yes, those are all, I guess, in the Anti-deficiency Act.