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Professor WINTER. Yes.
Professor MILLER. If they have the requisite standing.
Professor CORRIN. They have to have the requisite standing.

Professor MILLER. You have a tough problem there and there is a question whether Congress can even invest litigants with the requisite standing. I think you are in a very uncertain area.

Professor WINTER. In Youngstown Sheet and Tuhe v. Sawyer. Congress not only found they were able to invest somebody with the necessary standing, they did it.

Professor CORRIN, That is correct. They did it in another area. As you know perhaps far better than I, the Supreme Court has adjusted over the years its concepts of what are to be considered as political questions. And they have gradually broadened their view here and broadened their view as to what they can say about the Executive and what he can do and what he cannot do. I am not sure that they are ready to move into this area. Again, I mention this; I do not think that it is a likely course of action.

There is, thirdly, the possibility of passage of an appropriation bill authorizing the President to eliminate or reduce specific items subject to congressional reversal by concurrent resolution within a specified number of days. This proposal does not originate with me and it is not a new one. However, you run into the problem of whether a concurrent resolution, which does not go before the President for signature, can have standing. And I am not sure whether that is settled or not.

You have another kind of option where you have restrictive legislation, which would revoke appropriation authorization if mandatory requirements in terms of intent, purpose, or expenditure are not fulfilled within specified time frameworks.

I have a feeling that Senator Mathias was asking the previous witness a question along this line. I think that is a possible course of action. And of course, you have enormous quid pro quo legislative action as an option, sort of counterpunitive measures. If the President is going to act in this way, the Congress has other ways of being equally or more irritating. That goes in the regular flow and play of political discourse which takes place.

I have two other options. One involves publicity and education through hearings, media reporting, party conference action, and so on, which could dramatize this problem, which is not one easily understood by the general public or appreciated. It is not developed in any way like you can make a picture about the Vietnam War or make a picture about the Middle East or about urban problems. It is a difficult subject to discuss and retain interest in the face of crabgrass on lawns and other interests which citizens have. And we do need education on it. I think that this sort of option might allow the problem to be placed in a priority which is higher than it seems to occupy in the public domain at this time, although it is high in the thinking of Members of Congress. But it is not going to get that way unless Congress takes on, in my opinion, its educational role, both internally and externally.

Lastly, as an option, it seems to me that we could well engage in some research and analysis of conflict resolution alternatives regarding impoundment which would include improved methods of data retrieval and communication patterns within and between branches. We have, I think, some great difficulties in this area. If there is a confrontation of impoundment, both the executive branch and the Congress are caught. Where do they go from there? That is one of the reasons we are in session now.

You know, we have made, I think, some considerable strides in examining conflict resolution in theory and in practice at the international level. We are not doing as much as we could do, possibly, within the society. I do not have a bag of answers or responses for you. I have done some work in this area, others much more. But I am led to believe by what I have done that it is possible through this approach of conflict resolution to view and to come up with alternative patterns which do not block out further communications and further action between the concerned parties so that there may be accommodation or resolution in a way that is mutually satisfactory to the Executive and to the Congress.

I think, I suppose as a sort of summary, that the problem which which we are considering today is one piece. It is an incremental approach. It is in a framework of a larger problem of massive government. And there are conditions which prevail which make it difficult, not merely for the Congress but for the Executive as well, to perceive and control the operations of the governmental system. Impoundment may well occur and be established as an action without the desire of the Executive and occur without the knowledge of the Congress.

One of our problems, I think, in working with this society is that we do not know quite how to deal with a large scale system; and just as we are confined in many of our communications to the printed page, which sticks us back with Guttenberg, our operations are confined to patterns we have learned and used rather successfully over many years in the past, but which are not going to permit us to retain a control over our system in the future if we simply continue to utilize them as we have in the present and the past. We are caught in problems of time, and time has foreshortened and we are caught in the problems of fragmentation of government as well as society.

All right, that is very philosophical and I am sure you do not need that. But it does represent some of the underpinnings of my thoughts on this subject. (Prepared statement follows:)


Baltimore, Md., March 25, 1971.


Hon. Sam J. ERVIN, Jr., Chairman,
Subcommittee on Separation of Powers,
U.S. Senate,
Washington, D.C.

DEAR SENATOR ERVIN: I have been asked to respond to the subject of Presidential or executive impoundment of appropriated funds as a problem within the American government system ...a problem which the Subcommittee on Separation of Powers has determined as an appropriate subject for examination

with a view toward “ascertaining the proper roles of the Congress and Executive.” The views, stated below, represent my personal-professional opinions.

1. In my opinion, executive impoundment of appropriated funds becomes of particular concern to the Congress and to the society :

(a) if it should be exercised as a general and regular pattern of conduct outside and beyond a framework permitting establishment of reserves for contingencies, affecting savings through improved efficiency, holding due to condition changes subsequent to appropriation date, or reserving due to changes in requirements;

(6) if such impoundment is a part of a design to nullify the appropriate roles of the Congress ;

(c) if it exceeds the bounds of reasonable political interaction between the Executive and the Congress; and

(d) if its exercise appears to produce a harmful deterioration in the viability of the interweaving complex of values which appear to express the purposes of this society and the methods by which such purposes a re, in the main, to be realized. (See, attached article on "The Political Parties and Our Democratic Values.") 2. Executive impoundment has been threatened or enacted on occasion by both Democratic and Republican Presidents (e.g., President Harding, in 1923, advising the Congress that he would order the War Department to keep rivers and harbors expenditures within the amount fixed by the Budget Bureau and ignore an additional Congressional appropriation ; President Truman, in 1948, impounding funds beyond the amount recommended by him for the procurement build-up of the Air Force).

3. Executive impoundment appears to be within those powers which may be exercised by the Executive. Its exercise on any or many occasions may produce reactions and charges ranging from approval to illegal conduct. The same reactions and charges may be applied to those members of Congress supporting appropriations which become subject to impoundment.

4. The practice of Executive impoundment appears to occur most frequently when the Presidential recommendations of programs and their funding are materially altered by the Congress. In support of such actions, he might well draw comfort from the following points:

(a) The phrase in Mr. Justice Roberts' opinion (U.S. vs. Butler, 297 US 66, 1936) "... the power of Congress to authorize expenditures of public money for public purposes ...". Authorization does not usually include the concept of requirement.

(6) As Senator Norris stated in 1938, “if power is to be given to anybody to do anything under a government, it is possible for him to misuse and abuse the power and make it disreputable and destructive." The appropriation action which produced impoundment may represent a position that there has been an abuse of Congressional power.

(c) By impoundment, the Executive is not violating the separation of powers doctrine. It is quite clear that this doctrine does not possess a precise meaning, that “the degree of separation required by the maxim can never in practice be duly maintained" (#48 Federalist Papers), and that historic practice demonstrates the interconnecting and blending of

the three branches of government in terms of powers and functions. 5. It would appear that Executives have and must make judgments of the political consequences of impoundment. It seems reasonable that such judgments have and will continue to impose limitations as to how far a President may go in altering legislative appropriations.

6. There have been occasions when the intent of the Congress with respect to specific aspects of programs, their purposes and limits, and their funding, have lacked precision in definition as well as clarity. In some instances, such non-specificity or imprecision has been intentional. We may classify these actions as delegated legislation (which could be considered as a self-generated exception to or violation of the separation of powers doctrine) or as appropriations allowing discretionary executive action. Such purposeful action by the Congress does add to Executive branch responsibilities, but it is considered justifiable and necessary given limited consideration, time, expertise, and experience in the many topics with which the Congress must concern itself.

Impoundment is quite possible and perhaps quite reasonable in this condition framework.

On the other hand, the intent of the Congress in any bill may lack clarity, the descriptive phraseology and definitions permitting multiple interpretation or variations in the assumptions and presuppositions underlying the intent phraseology. Impoundment may be one of a number of alternative actions under such conditions.

7. I suspect (and suggest that verification might be useful) that impoundments have occurred which have not been in the interest of the Executive or the Congress. The complex mechanisms of large scale government as well as established agency personnel and appointed staff members with different outlooks offer problems in communications within and between the executive and legislative branches and enormous difficulty in adequate data retrieval, analysis, and subsequent decision making-all of which may unnecessarily result in actions such as impoundment by the executive branch or appropriation levels by the Congress which may be excessive in its own view. Moreover, the actions of "over” appropriation and impoundment appear to freeze positions in a mutually irritating fashion which suggests that we may lack patterns of conflict resolution to avoid the negatives emerging from mutual recrimination and counter-punitive action. To put it another way, it is quite possible to fault the Executive or Congress as focus points when, in actuality, both may be unable either to exercise control or to acquire information which might render impoundment conflict unnecessary.

8. Appropriation-impoundment problems may emerge as well out of the continuing political conflicts between and within party groupings. In our partisan concerns, there is a rather constant awareness and interest in the next election and in fulfillment of programs (crossing party lines) which will both satisfy and draw support from constituents and voting citizens. One aspect, then, of the impoundment situation may be (to take a Jeffersonian phrase out of context) part of the "natural manure" of politics.

9. There have been occasions, I feel, when an impoundment condition has arisen in face of reasonably clear Congressional intent and/or where appropriation has been regarded by a majority of the Congress as mandatory rather than as permissive or optional. This is hard confrontation and may well arouse the same ire within the Congress that is felt by the Executive who may sign a bill containing riders or amendments totally repugnant to him. There is no way, to my knowledge, to compel a reversal of position in either branch.

10. The Congress, of course, possesses a number of options to combat what it may choose to consider as Executive encroachment.

(a) Impeachment of the Executive (the difficulties and problems in such a process are self-evident).

(6) Referral to the Supreme Court for juridical evaluation and order (in the ordinary course of events and conditions, it is unlikely that the Court would undertake review. You will recall the Court opinion in Mississippi vs. Johnson [4 Wall. 475 (1867) ] where it confessed to an inability to enjoin the President from exceeding his constitutional powers or to order him to perform his constitutional duties. The Court, moreover, is likely in this time framework, to regard the matter as a political question which offers justiciable difficulties).

(c) Constitutional amendment (passage offers particular difficulties since there are problems in communication and explanation to the various publics, an additional problem emerging from those states (40?) which possess forms of executive item veto, and the position held by many who may argue with some satisfaction that what law does not forbid, is permitted).

(d) Passage of an appropriations bill authorizing the President to eliminate or reduce specific items subject to Congressional reversal by concurrent resolution within a specified number of days (offers possibility that Executive might sign bill but would not be considered bound to reduction allowance or concurrent resolution aspect-on Constitutional grounds [Article I, Section 7... "every order, resolution or vote ... shall be presented to the President ... and before same shall take effect, shall be approved by him..."]).

(e) Restrictive legislation which would revoke appropriation authorization if mandatory requirements in terms of intent, purpose, or expenditure are not fulfilled within specified time frameworks (invites Executive veto).

(f) Restrictive quid pro quo legislative action ranging from refusing approval of appointed officers to denial of legislative support for noncrucial (politically) areas of Presidential interest (the Executive has available counter measures of similar effectiveness).

(g) Publicity and education through hearings, media reporting, party conference action, contract study groups, etc. which might dramatize the problem, its significance, and its implications (has possible benefits, at the least in raising the priority of importance of the subject matter).

(h) Research and analysis of conflict resolution alternatives vis-a-vis impoundment to include improved methods of data retrieval and communication patterns within and between branches (has possible benefits

which extend beyond problems of impoundment). 11. Appropriation-impoundment problems arise in part, I feel, from the views of Executive and the Congress as to their appropriate roles and functions. Positions may differ with integrity but radically. Members of the Senate and the House may speak with vehemence and lengthy exampling of impoundment as one of many cases in a long time line of erosion of legislative power. An Executive may refer to the limitations upon his proper role by Congressional interposition and action. In my judgment, both branches possess enormous power and authority (potential and actual) which is separable, interrelated, and interdependent. The utilization of such powers demands the irritation of constant adjustment. Below this adjusting level, however, lies a more far-reaching and complex problem condition, namely, how to effectively manage a system which pervades every aspect of human endeavor and possesses multiples of fluid, variable, and interrelated factors. Is it not possible that we may better utilize our technology to promote more effective system operation? Incrementalism in approach and action with its high frustration levels, is both an expression of human conceptualization limitations and a pattern leading to stasis and further societal fragmentation in our future.


Professor, Department of Political Science. Senator Mathias. Professor Corrin, I do not think the Chair ought to ever badger a witness but I would have to disagree with the characterization of your testimony as being very philosophical. I think it has a lot of philosophy in it, but you have presented the subcommittee with something of a paradox. Because we have had a number of witnesses who come from government positionsGeneral Accounting Office, the Justice Department, the Office of the Bureau of the Budget and other places and our discussions with them have been in a high degree philosophical. You come here from the academic world and I think you have given us more practical suggestions and thoughts than all of the people who work for Caesar.

Professor CORRIN. Thank you.
Senator MATHIAS. So you have not let us down in that respect.
Professor CORRIN. Thank you.

Senator MATHIAS. I am particularly interested in the emphasis you place on potential remedies. But let me roll back one moment to something you said in the very beginning. You indicated, I think your words were that impounding is here to stay and you accepted the fact of impoundment. Well, we all have to accept the fact that it has happened, but in your judgment, does it happen as a result, as some of our witnesses have described, from conflicting statutes which create justifications, or, does, it happen as a result

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