Senator ERVIN. Yes. And we have had a good many illustrations of that. I think one which illustrates this point of where new developments have arisen since the appropriation was made during President Truman's administration, where Congress had appropriated a considerable amount of money for the building of veterans hospitals and military hospitals. Then the war came to an end and the anticipation on which Congress made the appropriation that there would be many more wounded American soldiers to be taken care of had come to an end. So President Truman impounded those funds, which I think all of us recognized was the sensible thing under the circumstances. Those conditions do arise and always will arise, because appropriations are made long before the time for the expenditure of the money occurs and events may render the spending of that money appropriated unwise or inadvisable.

Now, you recognize the fact that Congress does have the ultimate power of the purse, generally speaking, and that Congress can make it clear that the expenditure of a specific appropriation for a specific purpose can be made mandatory, and in that case, that the President is obligated to carry out the project.

Mr. REHNQUIST. In the area of domestic affairs, yes. Our office has taken that position.

Senator ERVIN. I mentioned the fact about the suggestion made to the subcommittee, which seems to me was a way to get the same purpose as an item veto. We do now in a way get an item veto, in practical effect, where money appropriated is impounded and there is no change in that situation for Congress to override the veto. It was suggested here yesterday that Congress could, under the Constitution, adopt a general law on the subject and provide that when the President impounds money appropriated for a specific purpose, he should notify Congress of his purpose. Then Congress could reject his impoundment or approve it. I see nothing in the Constitution which would militate against the adoption of an act of that nature. At the same time, it would give the President in effect an item veto, subject to be overridden by the Congress, and it would avoid confrontations which occur from time to time in all administrations between members of the Congress and the President with respect to funds impounded.

The subcommittee would appreciate it if the Department of Justice would give consideration to legislation of that kind and give us their opinion as to the wisdom of it and the constitutionality of it.

Mr. REHNQUIST. Well, certainly, we would be happy to make that sort of an inquiry and I think could not help but be sympathetic on the purpose. I think the Department has traditionally been skeptical of the kind of three-legged and one-armed creatures that emerge from congressional veto and, you know, something that is a departure from the normal legislative process. But I certainly have not had any opportunity to reflect on the suggestion that you make and perhaps that would not be subject to the same objections as other types of things that sound like it.

Senator ERVIN. It is still a somewhat nebulous proposal and needs some concrete work. I can understand why the Department would not wish to take any position with respect to any legislation unless proposed legislation is first reduced to writing. Because it is hard enough,

sometimes, to understand the proposed legislation after it is reduced. to writing and it is totally impossible to do it when it is not reduced to writing.

Do you have some questions?

Senator MATHIAS. Thank you, Mr. Chairman.

I would like to join in welcoming Mr. Rehnquist. Just for the record, I am wondering if he would clarify whether he is speaking just for the Justice Department or more broadly, for the executive branch?

Mr. REHNQUIST. Senator Mathias, I am not even speaking for the Justice Department. I was asked by the chairman to appear and, of course, I am happy to appear. The Justice Department, as such, has not taken a position on the legal questions that arise out of this. Our office has taken a position on one of them.

Senator MATHIAS. As I understand the thrust of your testimony. you are saying these cases of impoundment have arisen because of contradictory directions on the part of the Congress, perhaps even inattention on the part of the Congress.

Mr. REHNQUIST. I think that is a very fair statement.

Senator MATHIAS. What is your view of a President, without the cloak of any contradictory direction on the part of Congress, who. simply as a matter of policy, impounds funds?

Mr. REHNQUIST. Senator, my own position in the area of domestic affairs, where the congressional intent is clear, is that the President does have an obligation to see that those mandatory expenditures are made.

Senator MATHIAS. One final question. Would you feel that there was any justification for impoundment in the case of the general revenue sharing program which has been proposed by the President, which I cosponsored?

Mr. REHNQUIST. Well, to say is there any justification for it, I would have to recognize, I think, that others have taken a different view than I have as to whether the President, even where the intent of Congress is clear, may impound funds. To me, the point is a difficult and debatable one.

Following my line of analysis that was made in a memorandum that was published in December, 1969, I would think that revenue sharing legislation could be drafted to make it clear that it is a formula type grant where Congress intends and directs that it be expended.

Senator MATHIAS. I may ask your help in making sure that we can get that kind of amendment. I think it is an essential feature of revenue sharing if Congress is not to pronounce its own funeral oration in the process.

Thank you, Mr. Chairman.

Senator ERVIN. Senator Gurney?

Senator GURNEY. I have only one general question, Mr. Rehnquist. I am sorry I was not here to hear the first part of your testimony. Do you not think it would be a useful thing if both the Congress and the executive branch of the Government came to grips with this problem and tried to iron out some rules so that this confrontation could be avoided, at least in some measure?

Mr. REHNQUIST. Absolutely. I think a confrontation is completely undesirable and that an effort to protect the legitimate concerns of Congress and the legitimate concerns of the Executive might well be something that would command the approval of both branches.

Senator GURNEY. Well, I am delighted to hear you say that because this certainly has occurred to me and also seems to be a phenomenon that is of fairly recent origin. I think one witness testified yesterday that it first began in 1921, with the creation of the first office of the budget. And then it really did not gain much headway until the days of President Franklin Roosevelt. But since then, it has grown like Topsy and Presidents have used this impounding method very frequently, involving great sums of money. I hasten to point out that this administration has not abused the power if you want to call it that any more than any other has. But still, it does seem as though it is an area that both the Executive and the Congress might well put their minds to work on so that some reasonable guidelines could be established. Obviously, the President has to manage the money that is spent and all of us understand that. Yet there are some areas where it seems to be quite clear that the will of Congress is being thwarted, perhaps intentionally, perhaps unintentionally. And I would think that by working together, we might come up with some rules that would benefit both of us.

Mr. REHNQUIST. I agree completely.

Senator GURNEY. That is all, Mr. Chairman.
Mr. EDMISTEN. Professor Johnson?

Professor JOHNSON. What recourse does the Congress have if the President does impound funds despite a mandatory appropriation? Mr. REHNQUIST. That is not an easy question to answer. I think Congress, as such, probably does not have judicial recourse. Whatever recourse it has is a political one. If the act of Congress is sufficiently clear that identifiable beneficiaries were intended to get the funds, that those beneficiaries may have some sort of legal action to compel the allocating of the funds to them I think has to be regarded as a debatable question. I think 20 years ago, one would have said there simply is not that right in any beneficiaries, but with the expansion of the doctrine of standing, I think you cannot be quite so confident of it now.

Professor STOLZ. Following that same line, Mr. Rehnquist, are you familiar with S. 4432, the bill that passed the Senate but did not get through the House last session relating to the powers of the Comptroller General and amending the Budget Control Act of 1921?

Mr. REHNQUIST. I am familiar with one section which was worked on in Justice as to the relationship of the Attorney General and the Comptroller General.

Professor STOLZ. That was the section authorizing the Comptroller General to institute a law suit in the event that he thought that the Executive was expending or obligating funds unlawfully?

Mr. REHNQUIST. I believe that was it.

Professor STOLZ. As it is presently drafted. Has the Department taken a position on that bill?

Mr. REHNQUIST. I think the Department made a recommendation to the Office of Management and Budget when that office was formulating an administration position while the bill was pending in the

last Congress. And I think it has been reintroduced. I do not know whether the Department has again taken a position or not.

Professor STOLZ. I realize this is a hypothetical question and perhaps you cannot answer it. But as it is presently drafted, that section. 320 (a) of the bill, or as it was drafted for the last session, provided that whenever the Comptroller General, "in the performance of any of his functions authorized by law, has reasonable cause to believe that any officer or employee of the executive branch is about to expend, obligate or authorize the expenditure or obligation of public funds in an illegal or erroneous manner or amount, he may institute a civil action in the district court for the District of Columbia for declaratory injunction and relief."

On its face, that provision would not appear to authorize the Comptroller General to institute an action when he believed that the Executive was not spending money as provided by law.

Mr. REINQUIST. It was the reverse situation that the section was drafted to cover, I think.

Professor STOLZ. Assuming that the Department is prepared to approve this bill, do you see any objection to broadening it to include the Comptroller General instituting an action to prevent an illegal impoundment?

Mr. REHNQUIST. I can see a good deal of objection from the point of view of the Executive. Traditionally, there has been rivalry between the Comptroller General and the Attorney General. By the way that things are set up, the Comptroller General is basically an agent of Congress and the Attorney General is an agent of the Executive. And every time you confer additional authority on the Comptroller General, you are subtracting something from the executive branch. I am sure the executive branch would not take the position that you must never subtract anything. But I think it would want to look very carefully at what was being subtracted.

Professor STOLZ. Well, I suppose that the theory behind this measure is an alternative to what the chairman was talking about as a way of resolving these disputes as they come up, a somewhat more legitimate, polite way than the internecine use of political clout.

Is there any real objection-if that is the theory of it and the Department is preparing to accept it with respect to illegal expenditure is there any reason why they should not be prepared to accept it with respect to illegal nonexpenditures?

Mr. REHNQUIST. I think the separations are distinguishable. I think the claim of the Comptroller General to get in at the beginning of a dispute over whether money should be expended, where he contends that it can be expended, is a logical extension of his power to audit accounts, which is the basic power conferred on him under the Budgeting and Accounting Act of 1921, whereas I think nothing in his power to audit accounts suggests to the same extent that he have the authority to force expenditures. I mean, if you do not spend money that you ought to spend, presumably, your accounts are not going to be surcharged.

Professor STOLZ. That is true, they are not going to be surcharged, but it is at least possible that it is just as illegal not to spend money as it is to spend it improperly.

Mr. REHNQUIST. I suppose, speaking in the abstract, that it could be. In theory, one might be obligated to spend just as surely as he is obligated not to spend.

Professor STOLZ. One other question that has puzzled me throughout these hearings and I realize it is a very difficult question. We have been using the phrase "to impound" I think rather loosely. I wonder whether you can comment a little bit on what precisely you think of as an impoundment? For example, we had testimony earlier on the Federal Highway Act impoundments, so-called impoundments. These really, operationally, are just deferrals. Do you regard a deferral as the equivalent of an impoundment?

Mr. REHNQUIST. Well, I did not choose the term "impoundment" nor have I really set about defining it. You know, one could certainly define impoundment to mean a refusal to spend which results in the money never being spent and reverting, so that it would take a new authorization and appropriation to spend it. And one could talk about a deferral as simply putting over to another fiscal year. I think it is largely a question of definition.

Professor STOLZ. I have nothing else.

Senator ERVIN. I think the difference is that the highway fund is a trust fund which cannot be spent for anything except highway purposes, where, as a general rule, an appropriation out of general funds reverts to the Treasury at the end of the fiscal year if not expended. I think that is the difference.

Mr. REINQUIST. The highway funds are continually available.

Senator ERVIN. That is right. They are trust funds, to be devoted to a particular purpose, rather than general funds.

Professor WINTER. I have nothing, Mr. Rehnquist, but to say that if the attitude of the Executive is that expressed in the memoranda that we have here, I think all constitutional issues evaporated and the only question left is what language the Congress ought to use in its appropriations. I really think all the separation of power issues disappear as long as there is going to be a careful review of congressional intent in each case and no assertion of an independent executive power to decline to spend. It does not seem to me that there is a constitutional issue left.

Mr. REINQUIST. I suppose you are probably right, Professor Winter. I might add that this is not an administration position, not just to take the contrary position, but the administration simply has not formulated a position.

Professor BICKEL. Well, taking up from that, Mr. Rehnquist, I was going to say that I noticed a bit of light showing between the position that you express here and in your memorandum on the impacted schools act and on the ESE Act and the position expressed here yesterday by Mr. Weinberger in behalf of the Office of Management and Budgeting. I do not think Mr. Weinberger conceded, despite your opinions, that a mandatory congressional appropriation, even in the domestic area, necessarily bound the President. He was ambivalent about it, but he was not prepared to concede that.

He also, I think, took a little different view of the precedents. He seemed to think that the practice went back at least to President Lincoln's time and possibly earlier. I think it now seems clear, in