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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

nicate of all of distr

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.

Profesor ERVIN. I thnot be spent ana

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. REHNQUIST. 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. REHNQUIST. 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

view of testimony that we have heard since, that probably the reason for that was that he tended to confuse problems of programing expenditures, such as you mentioned that arose under early appropriation acts that were open-ended, and problems of impounding or otherwise reserving funds that were specifically appropriated.

Where your position and his tend more to coincide is in the area of the war power and the foreign affairs power. That puzzles me a little bit. I had talked with Mr. Weinberger on that.

First of all, let me talk about your example of President Jefferson being troubled that Congress appropriated specific salaries for particular ambasadors rather than giving him money to pay ambassadors. That seems to me a rather narrow point, because the Constitution quite specifically tells the President to appoint and receive ambassadors and that privilege appears to have a constitutional foundation which some other appropriation for foreign affairs purposes, foreign aid or what have you, would not quite have. Would you agree with that?

Mr. REHNQUIST. No, I do not think so. I am just trying to think the thing through. The President is authorized to appoint ambassadors and other public ministers, with the concurrence of the Senate, with confirmation by the Senate.

Professor BICKEL. That seems to me to slice that function out of the more general ones which are there by implication in the Constitution and to enable him to say, “You cannot appropriate a salary for a given ambassador and enable me to use it only for him and thus put pressure on me to retain him and not use it for some other ambassador when I think I no longer want to have one in Morocco and send one to Tunisia. You cannot tell me in your appropriation, in effect. I either have one in Morocco or I cannot have one at all." That seems to me a more plausible case for the President to say, when you appropriate, we ought to give $100,000 for foreign aid to Tunisia and I decide next year that I do not want to, that Tunisia has not been nice to us. I can override your will on that because it is foreign affairs, where as if it is for a bridge in Kentucky, I cannot override you on that.

Mr. REHNQUIST. This is what the Constitution says:

He shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.

Now, it seems to me that that language by itself, unless there is something peculiar about the foreign affairs power, would give him no more claim to specificity of the salaries of ambassadors than it would to Supreme Court justices.

Professor BICKEL. The Supreme Court is obviously a separate rationale, but it might give him the same claim with respect to specificity of salaries of executive officers.

Mr. REHNQUIST. But he did not choose to make that claim.

Professor BICKEL. Maybe Congress did not choose to make that a case. But it seems to me a different case from what is now the very broad area of foreign relations, where all kinds of monies are appropriated for all kinds of purposes, and if that whole area is put in

a special position, this is a rather slender foundation to rest that argument on.

Passing on to the war power, I am even more puzzled. It is difficult for me to see why, as Commander in Chief, with his independent powers to command the Army and the Navy and the Air Force, why that means that if Congress appropriates money for 50 bombers and he decides he does not need 50 bombers, even though Congress appropriates it in mandatory fashion, which is the only real case we are talking about, he can override it. Whereas in what seems to me an even more crucial case, from the point of view of the Commander in Chief function, if Congress fails to appropriate money for the 50 bombers and he figures he needs them, he cannot generate the money and spend it. Either way, it seems to me the Commander in Chief is subject to the will of Congress. He commands whatever the Congress provides or fails to provide.

Mr. REINQUIST. You have a specific thing in the Constitution that no money shall be withdrawn from the Treasury unless appropriated by Congress. Certainly a more general power such as the power of the Commander in Chief would not be construed, I should not think, to override that. But you do not have the same categorical direction at all in the Constitution as to whether the President must spend where Congress has appropriated. That is much more doubtful.

Professor BICKEL. One wonders about that. That brings us to the basic constitutional position. But one wonders whether the power of Congress to make laws, which is stated, of course, in substantive terms and implies the power to spend the money that is appropriated and appropriate the money necessary to carry out such purposes. The very distinctly stated duty of the President to execute laws, just as distinct as the prohibition against spending money that is not appropriated by law, referring it back to section 8 of article 1 for the affirmative power of the Congress—the distinct duty of the President to execute the law is just as distinct as the prohibition against spending unappropriated money. One wonders why that does not mean that he is to carry out the laws of the Congress. When Congress says spend $50 million, he spends $50 million, because that is not justbecause behind that is always, in the constitutional scheme, a substantive policy, which is the law. That is really the law which he is supposed to carry out in substantive policy.

Now, you know, in modern times, problems have arisen and a practice has arisen that indicates that that is not enough. Those simplicities are not enough. Problems arise after the money has been appropriated and some mind has to be applied to them and a judgment has to be made. And it is that practice that we are here dealing with. But the original constitutional position seems to me to go across the board and to be all in favor of Congress.

Mr. REHNQUIST. Well, to say that because the President is required to take care that the laws be faithfully executed, that he simply has a ministerial duty to carry out whatever law Congress has passed regardless of the fact, say, that it may, in his opinion, and quite justifiably, infringe on some constitutional prerogatives of his, is not an idea you would subscribe to.

Professor BICKEL. No, I certainly would not. Nor did I suggest that.

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