as a basis for sending troops by reason of a treaty or something like that, I think, in that situation, that is certainly the prerogative of Congress.

Senator GURNEY. Well, suppose in the Eastern Hemisphere you had a missile site and your intelligence told you that 2 weeks from today, they were going to land a missile on the Capitol of the United States from that site located in the Eastern Hemisphere. Then what would the President be em owered to do or not empowered to do?

Mr. REINQUIST. I think there he would have a, needless to say I am speaking very much off the cuff, but

Senator GURNEY. We probably ought to make it 24 hours so that Congress would not have time to act in this situation.

Mr. REHNQUIST. Certainly he ought to go to Congress if there is time. But on the same theory that he can decline to spend the full million dollars for eliminating the Mediterranean fruit fly if it only takes half a million dollars, and that he can cause a reserve to be created in an appropriation if he finds that the purpose of Congress can be served by doing that, I think under those circumstances, he would have the authority to disobey the law that Congress had passed. I think he would not be disobeying it. He would, in effect, be perfectly right in concluding that Congress had not intended it to apply to this situation.

Senator GURNEY. That was the only point I was making.

Senator ERVIN. That would be a threatened invasion, would it not, and he has power under the Constitution to repel invasions.

Mr. REHNQUIST. Yes.

Senator ERVIN. So this is a rather remarkable incident, really. The more I think of the situation, the more marvelous it becomes to me.

Professor MILLER. May I say that is an instance in which I would think the President, at least in my judgment, not only has the power but the obligation to act in certain instances. But I am a little reluctant to put it on the basis of law. I am willing to go along with Justice Jackson in his opinion in the Korematsu case and say there are certain instances where we do not want to put the color of law on some of these things. If the survival of the Nation is at stake. even the survival of some soldiers, yes. But put this under the color of law, then we are running down dangerous paths. I would prefer. as Justice Jackson said, in the Korematsu case, to go ahead and do it, but do not come up to the Supreme Court and get a stamp of approval for it.

Mr. REHNQUIST. If you add that qualification, certainly there are many questions that do not readily lend themselves to judicial decision. I would personally dislike the inference that the President is not under law in some situations. I agree with the chairman that if you look at the Constitution and read cases like In re Neagle and Curtiss-Wright, the President has the powers under the law that are necessary to respond to these emergencies. But I would shy away from the doctrine that he is a law unto himself under certain circumstances.

Professor MILLER. If you want to define law, I think you can, as the Red Queen did, define it any way you want. But you shoot your

self down because you bring everything under the word "law." If law does not mean you cannot do something under certain circumstances, it does not mean anything.

With this idea, I would suggest that there is an area of undefined Executive powers in which the President not only may, but in certain circumstances should act.

Professor BICKEL. Mr. Rehnquist, could I just read into the record a couple of sentences from the opinion of your office which is in the Congressional Record of January 20, which seemed to me to bring us back to the issue that we started with and are very telling on it. It may be argued :

That the spending of money is an inherent executive function but the execution of any law is by definition an executive function and it seems an amorphous position that because the executive branch is bound to execute laws, it is free to decline to execute them.

Now, you are talking about mandatory things. Then there is another passage where you say it is the President's duty to take care that laws are faithfully executed. The argument, you say, that he may withhold expenditures "carries weight in the situation in which the President is faced with conflicting statutory demands"-I suppose you have in mind their ceilings-"as, for example, where to comply with the direction to spent might exceed the debt limit or a limit imposed on total obligations and expenditures. But it appears to us necessary for the conflict to be real and iminent for this argument to have validity. It would not be enough that the President disagreed with spending priorities established by Congress."

Do you still agree with that?

Mr. REHNQUIST. I still agree.

Senator ERVIN. I want to take this occasion to thank you not only for your assistance at this time but on previous occasions we have asked you to come and give us the benefit of your views. You have been very helpful to this subcommittee and other subcommittees on which I have served on a number of occasions.

Mr. REHNQUIST. I have learned to look forward to your subcommittees, Mr. Chairman. It is always a pleasure to appear before you. Senator ERVIN. The subcommittee stands in recess until 2 o'clock. (Whereupon, at 11:40 a.m., the subcommittee was recessed until 2 p.m. of the same day.)

AFTERNOON SESSION

Mr. EDMISTEN. Mr. Chairman, the first witness this afternoon is the Honorable Robert Keller, Assistant Comptroller General of the United States and Mr. Paul Dembling is the General Counsel.

STATEMENT OF ROBERT F. KELLER, ASSISTANT COMPTROLLER GENERAL OF THE UNITED STATES; ACCOMPANIED BY PAUL DEMBLING, GENERAL COUNSEL; AND SIMON LITTMAN, ATTORNEY, GENERAL COUNSEL'S OFFICE, GAO

Mr. KELLER. Mr. Simon Littman, who is an attorney with the General Counsel's Office, is on my left.

Senator MATHIAS (presiding). Mr. Keller, we are very happy to welcome you to this subcommittee and we appreciate your coming and the presence of your colleagues as well.

The chairman of the subcommittee, Senator Ervin, asked me to open the hearing this afternoon. He has been called out of town on an engagement, but he is very anxious to have your views on the record. So we will ask you to proceed without further ado.

Mr. KELLER. I have a short statement, Mr. Chairman, which I would like to proceed with, if that is agreeable with you.

Senator MATHIAS. Go right ahead.

Mr. KELLER. We are very pleased to be here today to discuss the functions of the General Accounting Office insofar as they relate to the withholding of funds by the executive branch after congressional action making funds available for expenditure.

Executive impounding of funds has a number of facets both factually and legally. It may occur at various levels within the executive branch of Government and involve problems of statutory and constitutional construction and also, I might add, policy considerations. It is a problem that has become quite significant within the past 30 vears. This topic has been the subiect of extensive writings. One recent example is by Senator Church, in the Stanford Law Review. entitled "Impoundment of Appropriated Funds: The Decline of Congressional Control Over Executive Discretion." 22 Stan. L. Rev. 1240-1253 (1970).

Previous witnesses before your subcommittee have no doubt mentioned the complex issues involved, such as:

Are appropriations made by the Congress to be considered as a mandate to spend the full amount or are they a ceiling on amounts to be expended?

Is a deferral of expenditure for a project or activity a frustration by the executive branch of the action of Congress if the project or activity is prosecuted at a later point in time?

The authority of the President in the Anti-deficiency Act for the President, acting through the Office of Management and Budget, in making apportionments to establish reserves to provide for contingencies and for savings when made possible by changes in requirements, greater efficiency of operations, or other developments subsequent to the date appropriations are made available.

The responsibility of the President to see that all laws are faithfully executed which requires that spending authorities be balanced against expenditure limitations which may be enacted by the Congress as well as against public debt limitations. These are difficult problems and can only be judged by the considerations, both factual and legal, in the individual case.

The General Accounting Office is not in a position to resolve these issues and any opinion which we might have in an individual case would for all practical purposes be advisory only. Our enforcement power is that of disallowance of expenditures. We have no power to direct an expenditure except in the limited area of settlement of claims.

The General Accounting Office was established by the Budget and Accounting Act, 1921, to examine the manner in which Government

agencies discharge their financial responsibilities with regard to public funds appropriated or otherwise made available to them by the Congress, and to make recommendations looking to greater economy and efficiency in public expenditures.

Our present audit authority with respect to the Government as a whole is derived from two sources. Section 321 of the Budget and Accounting Act, 1921, provides in part:

The Comptroller General shall investigate, at the seat of Government or elsewhere, all matters relating to the receipt, disbursement, and application of public funds.

Section 111(d) of the Accounting and Auditing Act of 1950 provides:

The auditing for the Government, conducted by the Comptroller General of the United States, an agent of the Congress, be directed at determining the extent to which accounting and related financial reporting fulfill the purposes specified, financial transactions have been consummated in accordance with laws, regulations, or other legal requirements, and adequate internal financial control over operations is exercised and afford an effective basis for the settlement of accounts of accountable officers.

In carrying out our work with respect to any agency activity, or program, the following matters are examined:

Whether the agency is carrying out only those activities or programs authorized by the Congress and is conducting them in the manner contemplated, and to an increasing degree, whether they are accomplishing the objectives intended.

Whether the programs and activities are conducted and expenditures are made in an efficient and economical manner and in compliance with the requirements of applicable laws and regulations.

Whether the resources of the agency, including funds, property, and personnel, are adequately controlled and utilized in an effective, efficient and economical manner.

Whether all revenues and receipts arising from the operations are collected and propertly accounted for.

Whether reports by the agency to the Congress and the central control agencies disclose properly the information required for the purposes of the reports.

In summary, the thrust of our audits and reviews relates to the legality of activities and programs; the efficiency and effectiveness with which they are carried out; and whether the funds utilized have been properly accounted for. We have issued numerous reports to the Congress on these matters, but we have not geared our audits and reviews to emphasize whether agencies should have expended fully the funds that were made available for their use, nor have we challenged actions by the executive branch with respect to impounding or withholding of appropriations. It may be that in particular cases we have reported that a program or activity was not completely carried out as a result of fund reservation.

Senator Church in his law review article suggested as one possible solution to the problem of executive impounding of appropriated funds that "The duties of the General Accounting Office, an arm of the legislative branch, might be augmented to include supervision of expenditures in order to identify when impounding has occurred." We have some question, however, as to whether this would be the

most productive use of our staff resources when direct reporting to the Congress by the Office of Management and Budget whenever funds are reserved, also suggested by Senator Church, would seem to be a more effective means for Congress to obtain the information it requires. However, should the Congress decide that our office can assist in the solution we will be glad to cooperate fully.

This concludes my statement, Mr. Chairman. I will be glad to respond to any questions.

Senator MATHIAS. Mr. Keller, I think that is a very helpful statement. It is very brisk and very efficient and very much to the point. I think the catalog on page 2 throws a very helpful spotlight on the problem.

What you are really saying to us, I suppose, is that the General Accounting Office in the first place is a retrospective agency. You look back on what has occurred and by and large, these impoundments have a prospective impact. In other words, you look at something after it happens and it would be difficult for you to get a handle on it under those circumstances.

Mr. KELLER. Generally, I would say that is true. Mr. Chairman. I think, in recent years, we have been much more prospective than we have been in the past. But the point I would like to make here is that there is no power in the Comptroller General or the General Accounting Office to require an expenditure by an agency of the executive branch.

Now, this is what is involved when there is an impounding of funds; in other words, a decision by the executive branch not to go ahead with a program. So, at best, the Comptroller General could be in a reporting position; that is, reporting when impounding occurs. But even if we were of the opinion that the action taken by the executive agency was not legally proper, it would be an opinion only. In other words, there is nothing we could do to require that the money be spent as distinguished from where there had been an illegal payment or an illegal contract, where we would have the right to disallow any payments that might be made.

Senator MATHIAS. Let me ask you this: If the Congress were to direct that the Comptroller General give some notice. either to the Speaker and the Vice President as the formal presiding officer of each House, or perhaps to the relevant committee chairman, that an impoundment was in effect, and we would have to define exactly when impoundment took place, would you have the machinery to give such notice?

Mr. KELLER. Yes. Of course, we would have to gather the information from the agencies or from the Office of Management and Budget, and we could in turn report that information.

I have suggested that if the OMB was required to make such a report it would be a more direct way of doing it.

Senator MATHIAS. For instance, this committee in the course of these hearings has identified the reserve situation as of the, I believe it is the 23d of February, which shows some $11 billion funds which have been appropriated and authorized, but not expended. This underscores, I think, the accuracy of the statement that you made, when you said that it is a problem that has become quite significant.