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is what is the remedy. I think that there has been, in effect, a usurpation by the executive. I am trying to point out that I think that the executive is gearing itself up probably to do more of this than less. I think that Congress, as this committee recognizes, faces a challenge.

But the question that interests me is what is the remedy? What does Congress do in reaction to this usurpation?

Mayor ALIOTO. In that connection, Senator, I would like to point out what the remedy ought to be. There are 15 of us who are going this afternoon to the White House to visit with the President, a meeting we have sought to point out to him the urgency of what we are doing. We are going to make a plea, based literally on the desperation of the cities of this country, to unfreeze the money which Congress has appropriated.

Now, once the struggle has been made in Congress and a documented case has been placed before Congress, we ought not to be in the posture of having to go to the President to point out to him how desperate our situation is. But that is what we are going to do at 3 o'clock today.

Senator ERVIN. The Secretary points out one fundamental difference between the President and the Congress. The President, of course, can act with one mind and Congress has 535 different minds. It is hard to develop a consensus in the Congress. I have noticed that often I cannot get Congress to accept the sound views I have retained on a particular question.

Mayor ALIOTO. They are stubborn.

Senator ERVIN. And I think perhaps the Constitution intended it this way, that we have all the views of the people expressed in Congress.

Do any of you gentlemen have questions of either of these witnesses ? Mr. EDMISTEN. We will start off with Professor Stolz.

Professor STOLZ. Mayor Alioto, I was interested in your saying that you were engaged in activities to unfreeze $21 million for urban renewal. I wondered whether you considered the possibility of bringing a lawsuit and if so, what, if anything, are you going to do about it?

Mayor Alfoto. Since I am a lawyer, I have indeed considered the possibility of a lawsuit. As a matter of fact, I have made inquiries as to whether or not we could not get one of the States to bring the action so that we might get immediately into the Supreme Court. But obviously if our situation continues to be desperate, and I am sure it will continue to be desperate, we have thought of the possibility of doing exactly what was done in Pennsylvania-namely, of filing a lawsuit in which we attempt to point out that the freezing of the funds is violative of the Constitution.

Professor Stolz. I was wondering whether you think, assuming that such a law suit would be brought, it is likely to be very useful. One of the things I am concerned about is the time lag that is almost inevitable in such a law suit, and the appropriations will have lapsed long before you could get a judgment, I would suppose.

Mayor ALIOTO. That is true, but the courts on occasion, when the necessity for speed is sufficiently demonstrated, have indicated a disposition to move more quickly by way of injunction; mandatory, obligatory injunction. So we have considered the law suit.

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We know the problems about a law suit and that is why we are making the concerted effort this afternoon, when 15 mayors of the largest cities of this country are going to tell the President how dire the results could be of the policies he is pursuing with respect to this holdback.

Incidentally, I do not think the holdback, for example, has the sympathy of Secretary Romney, who knows the problem very intimately. We know the problems of the law suit. This is why we are taking the present course. But if everything else is a loss, I think we ought to bring the law suit to establish the principles for the future.

Professor Stolz. I hesitate to ask the former Secretary, but do you think judges have any business interfering in these problems? Mr. UDALL. What would have? I did not hear.

Professor STOLZ. Judges. In other words, do you think the possibility of a law suit is going to be productive?

Mr. UDALL. It raises questions in my mind. That is the reason I was trying to intimate in my statement. I think the best way to resolve this problem would be if Congress really got tough and put the President in a whipsaw. I think it could do so and I am somewhat disappointed, and I am criticizing leaders of my own party, that this is not done right now on behalf of the cause, for example, that the mayor espouses here. I think Congress has been too timid. I think that it has been too lenient on issues of this kind.

My views are tempered a little bit. I happen to think the President ought to have an item veto, to be candid with you. And I think in times like these, we need a strong presidency. And although I approve of Brown v. Board of Education and Baker v. Carr and many of the recent Supreme Court decisions, I wonder whether this is really not the political thicket getting between the Congress and the White House that Justice Frankfurter talked about. I leave it to you learned gentlemen here—your opinions are probably more valuable than mine-as to whether it would be fruitful to go to the court on an issue of this kind.

Professor WINTER. Mayor, is it not clear that if Congress were to direct the President to unfreeze these funds, he would do so. That much is clear, is it not?

Mayor ALIOTO. I would think so.

Professor WINTER. The administration does not take the position that in the face of a direct command from Congress not to impound, not to freeze, that it need not spend the funds involved. So that there is a remedy that is available in the Congress.

Mayor ALIOTO. That is so, but there are practical limits to that remedy. Those of us who know what it takes to finally get the majority of the Congress to act with respect to a specific case, how long the process and how hard the work, think we ought not to be forced to the necessity of having to do it all over again in terms of the reminder to the President that you really meant to say what you actually said.

Professor BICKEL. I was interested in Mr. Udall's formulation of the issue by way of conceding that what is going on is fairly obviously an extra-constitutional practice, but emphasizing on the other hand that the problem that the President is trying to meet by extraconstitutional means, which I would agree and it seems to be the consensus are intolerable, is a problem that does exist. Congress puts

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together in the course of a year a whole batch of appropriations without, for the most part, indicating priorities. The fiscal year goes along, the economy finds itself in this or the other state where a judgment is at least tolerably sensible that spending ought to be cut and that is a matter of policy. You cannot come back to Congress as things are now arranged to have that done. Somebody has to do it; somebody may think it is his duty to do it. If it is to be done, you are led into the priorities problem. You are led to ask, well, what should I cut? If Congress has given no indication, if it has not tagged these appropriations as No. 1, 2, 3, 5, and 10, no indication of that, then the President is at liberty to decide as a matter of policy that he would rather have San Francisco go without certain funds than to have—which is his judgment-inflation more rapid than it is now.

One may disagree with the judgment, but it does seem to me one does have to recognize the problem and that the system as it is now organized offers no very good structure for that decision to be made. It may be, as I think the administration itself apparently recognizes, judging by some opinions that the Justice Department rendered, that some appropriations do carry a priority tag when they are clearly mandatory and it may be, Mr. Mayor—I do not have the facts before me—it may be that the one you are talking about, certainly the legislative history would indicate that, is such a mandatory appropriation and when the President fails to spend that money, it seems to me one can say flatly that he is doing something unconstitutional.

On the other hand, there are other appropriations that do not carry their own priorities on their own face. In that event, unless Congress works up some machinery for indicating its own judgment on priorities, I would feel, as I gather you, Mr. Secretary, in some measure, feel that the country would be ill served if there was no place at all, nowhere, no authority in anyone, to make such judgment.

So I think we are in the presence of a real problem which we ought to address as one that demands solution by newly thought through constitutional ways rather than being left to solution by extra and in many instances unconstitutional ways.

Mr. UDALL. Well, I think you put your finger on one point. That is that there may be distinguishable differences and that if the Congress or some other government entities decide to go to court to try to get constitutional precedent set, they cught to pick the strongest possible case. I could have made a list of my own complaints with regard to my own department and the things that I thought were important at the onset of Vietnam, when funds were impounded. Nevertheless, it seems to me right now, we are talking essentially about the appropriations committees of Congress that are in a way the most powerful committees. If they really decided that they thought these funds were important, I think they could jar them loose in a matter of a few days, or at most a month. This would require them doing something they have never done before, however, and they are creatures of habit and they are headed by the elders of Congress. The oldest men run the committees, and they are all fragmented into little subcommittees, each of which is a little ducky all its own. So there is no mind in these committees that says, you know, this is an

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outrage what they are doing to the cities, let's put some pressure on the President.

Because the President always has his own things that are very urgent. He is sending up requests for supplementary appropriations and Congress can simply say, "We are not even going to consider these until you start spending this money that we consider very vital," and indicating its own sense of priorities. This would be doing something Congress has not done previously. But I think they ought to do it, quite frankly.

Mayor ALIOTO. I would like to comment on that, sir. I think you have put your finger on a very important issue. There are at least two kinds of appropriations. I have a little background and experience in connection with agricultural appropriations. In that area, unquestionably, what they were doing was setting ceilings, because they did not know what economic factors were going to be involved, what production factors were going to be involved in such variables as the weather, for example, or blight or anything like that in agriculture. So they say, in effect, you are authorized to spend up to a certain amount and to the extent you can spend less than that, we would like it; but nevertheless, these are the objectives we want you to serve. That is one kind of appropriation where, manifestly, the executive branch has been given, under congressional standards, some discretion.

There is anothed kind of appropriation. That is when a group of mayors, who are like the voice crying in the wilderness, come to Washington to plead for a special situation which carries with it not a sense of urgency but an actual sense of emergency. And it is very clear from the legislative history that that is the basis on which Congress considered the appropriation. When Congress makes that kind of appropriation and some of the executive branch says, “We are not going to spend the money," then it does seem to me an unconstitutional frustration of the will of Congress.

I do not think those two types of appropriations are too difficult to ascertain in which category they fall. I really do not. I think the legislative history would show it.

But you have talked about the notion of a mechanism so that the White House and the Congress, perhaps, can confer on the matter. I suggest to you that there is a mechanism, for example, by which the Senate and the House confers to iron out difficulties. I do not know why a simple conference method, for example, could not clearly indicate to the White House that this is manifestly an appropriation that we want spent because it is based upon an emergency and the other is an appropriation predicated upon a ceiling where you do have a measure of discretion. I really do not think those two types of appropriations are that difficult to distinguish.

Mr. UDALL. There is an enormous deference. The thing that concerns Senator Ervin and is the center of these hearings is why congressional power has eroded, I think it is because of an excess of congressional restraints. There has been an enormous deference by the Congress, and I think this is really what is at the root of it.

Now, if, for example, you feel as I do that the money for San Francisco and these other cities is probably more important than replacing the helicopters in Vietnam and the Appropriations Com

mittee said to the President—this is an extreme case—“We are not going to give you the helicopters or money to replace the helicopters until you spend the money in the cities and help us solve these social problems," you would have a very interesting confrontation. This is what I meant when I used the term “whipsaw.” Congress could do it, but it has for some reason considered that it was not proper to do it.

Professor BICKEL. Let me just add that Congress could do it if it wanted to address the issue of priorities in connection with its appropriations process. It could do it ahead of time. It has from time to time done so.

For example, the administration itself concedes that the impacted area school aid statute and title I, at least, of the Elementary and Secondary Education Act of 1965, are mandatory because they use the word "shall” not “may” and because they name recipients of the funds. Those, incidentally are statutes under which, in my judgment, you probably could sue and get the thing into court.

But if the Congress, as a result of hearings like this, took more care in the future in its appropriations to address the question of whether it wishes to say “may” or “shall," whether it wishes to direct the expenditure of funds or authorize the expenditure of funds—you may recall that when President Kennedy put the arm on the late Chairman Vinson to have him omit the word "direct," the chairman considered the issue and they omitted the word "direct" and the administration then took the consequences—that was the RS-70 bomber-and exercised its discretion and did not spend the money.

Well, Congress ought to make that decision. It ought to decide whether it thinks the model cities program or impacted area school aid or whatever it is is a mandatory priority and when it thinks so, it flags it as such. Then we would only be left with the abstract constitutional issue which few will now argue, I think, that the President has some inherent power, even when ordered to spend the money, not to spend it, which I do not think is an argument which anybody will be willing to make for too long.

Professor MILLER. Just a brief comment and a small question. It seems to me we are faced here with an example of the rise of power in the executive which the Senator has been exploring in his other subcommittee so far as privacy and surveillance is concerned. We are seeing also the assertion of power by the Attorney General to wiretap without court approval or legislative approval. The basic question which arises is executive power within government. This is one example. That is the first point I would like to make.

I do not see also, as a second comment, how this habit of withholding funds fits in with the President's program of revenue sharing which he has announced only a few weeks ago. If he is going to share the revenue, I think he has to send the money out.

Mayor ALIOTO. We are calling that a promise of those "two birds in the bush," while they are removing the bird in the hand.

Professor MILLER. One or two small questions, Mr. Mayor, and Mr. Udall.

One, Mr. Mayor, is this: You talk about $21 million being withheld and so on. Just as a matter of interest, who told you that it would not be spent?

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